IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30525

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JERMAINE SURTAIN; CHARLES MOSS; DAVID SAMUELS,

Defendants-Appellants

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:09-CR-123-4

Before KING, SOUTHWICK, and GRAVES, Circuit Judges.

PER CURIAM:*

Defendants-Appellants appeal their convictions and sentences on various

counts relating to their involvement in three insurance fraud schemes. For the

reasons that follow, we VACATE David Samuels’s sentences on Counts 12 and

13 of the superseding indictment, REMAND for resentencing on one of those

counts (at the government’s election), and AFFIRM in all other respects.

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIRCUITRULE 47.5,the court has determined that this opinion should

not be published and is not precedent except under the limited circumstances set forth in 5TH

CIRCUIT RULE 47.5.4.

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I. FACTUAL AND PROCEDURAL BACKGROUND

On December 4, 2009, the grand jury returned a superseding indictment

against Defendants-Appellants David Samuels, Charles Moss, and Jermaine

Surtain, variously charging them and three other co-defendants with one count

of conspiracy to commit mail and wire fraud under 18 U.S.C. § 371, three counts

of mail fraud under 18 U.S.C. § 1341, seven counts of wire fraud under 18 U.S.C.

§ 1343, one count of use of fire to commit obstruction of justice and two counts

of use of fire to commit mail fraud under 18 U.S.C. § 844(h)(1), one count of

making a false statement under 18 U.S.C. § 1001, and aiding and abetting under

18 U.S.C. § 2 as to the wire fraud, mail fraud, and use-of-fire counts. The charges

arose from separate insurance fraud schemes that culminated in arson, murder,

and the destruction of a van used in the killing.

At trial, cooperating co-defendant Damian Landry testified that Samuels

worked with him at Volunteers of America, an elder care provider in New

Orleans. When Landry and his wife fell behind on mortgage payments for her

house in 2002, Samuels advised Landry to increase his insurance coverage on

the house and burn it down for the proceeds. Landry agreed, and Samuels set

out to find someone who would set fire to the house for a share of the insurance

money. Samuels ultimately recruited Moss, an army buddy of his from Detroit.

Landry testified that on the day the house burned down, he and Samuels

reported to work, and Landry then left to get breakfast. Samuels and Moss met

Landry later that morning and told him they would burn the house that day.

Samuels gave Landry the keys to his green Chrysler van, and Landry gave

Samuels the keys to a white 1991 Chevrolet with temporary tags. The car was

unregistered, making it impossible to trace. At Samuels’s direction, Landry went

to a client’s house so that he would have an alibi.

A neighbor testified that he was at home when he heard an explosion from

across the street. When he got to the window, he saw Landry’s house burning.

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He also saw a man with a burned face and hair leave the house and enter an

older white car with temporary tags, which then sped away. Landry received a

phone call from his probation officer, who told him that his house was on fire.

Before Landry could return home, Samuels called and told him to come to

Samuels’s house. When he arrived, Samuels and Moss entered Landry’s vehicle.

Moss’s face was burned, and Samuels said they had to take Moss to the hospital.

Landry refused, and Samuels instead had his brother Chris take Moss. Landry

then returned home to find his house destroyed. He and Samuels later took the

white Chevrolet to a wrecking yard to be demolished.

Landry filed a fire insurance claim on the house, but did not mention the

arson to the insurance company. Because the insurance payment he received

was not as large as he had anticipated, he used it to pay the mortgage company

and did not tell Samuels that he had obtained the money. After Samuels

pressured him for the insurance proceeds several times (sometimes violently),

Landry gave Samuels $3,000 from his tax refund.

Landry further testified that while the fire insurance claim was pending

in July 2003, he accompanied Samuels to insurance agent Stefan James’s office.

Samuels and James (a cooperating co-defendant in this matter) discussed

obtaining $100,000 to $150,000 of insurance coverage on the life of Treyor

Winston August, Samuels’s cousin. To that end, Samuels unsuccessfully sought

to convince Landry to pose as August.

James testified that he knew Samuels through his wife, who also worked

at Volunteers of America. James had sold life insurance policies to Samuels and

Samuels’s wife, and had socialized with Samuels on occasion. James described

Samuels as a braggart, and testified that Samuels once said he would have his

cousin killed for stealing drugs from him. Several weeks after making this

statement, Samuels came to James’s office with Landry.

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Even though James was aware of Samuels’s fraudulent and murderous

intentions, he ultimately sold Samuels a “double-indemnity” life insurance

policy. This meant that although the policy’s face value was $75,000, it would

pay out $150,000 if August’s death were accidental. Samuels structured the

policy in this way because any policy with a face value of $100,000 or more would

have prompted the underwriter to collect the insured’s blood and urine, and

administer a medical exam. August surely would have become aware of the

policy had he been asked for these things. The policy’s beneficiaries—Samuels

and his mother, Teresa—were falsely listed as August’s brother and mother.

Although August was listed as the policy’s owner, Samuels signed August’s

name on the application, had his own address listed on the policy to prevent

August from discovering its existence, and also noted on the application that

August should not be contacted at his workplace regarding the policy. Samuels

was involved in three subsequent fraudulent policies: (1) He took out a second

policy on August’s life for $25,000, the beneficiary being his sister, co-defendant

Maria Samuels; (2) he provided information to allow James to obtain a $25,000

policy on August’s life; and (3) he obtained a $90,000 “key man” policy on

August’s life, the beneficiary being his company, Sam’s Realty and Maintenance.

Samuels’s brother Chris, who had taken Moss to the hospital following the

Landry house fire, testified that Samuels asked him to kill August for $20,000.

Samuels showed him one of the fraudulent life insurance policies to demonstrate

a means of payment. Chris testified that he was unwilling to kill his cousin, but,

wanting to stall Samuels and warn August, said he would do it. Chris told

August of Samuels’s plan and the insurance policy, and gave him a gun for

protection. As he related at trial, however, he felt that August did not take the

threat seriously.

Apparently becoming impatient that Chrishad not killed August,Samuels

eventually sought someone else for the task. According to phone records,

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Samuels placed two calls on April 24, 2004 to Surtain, who was his sister’s exboyfriend and the father of her child, and who had recently returned to New

Orleans. Kelvin Marshall, who three years later would be apprehended with

Surtain in a burglary, testified that between 9:00 and 10:00 PM on April 24th,

Surtain called him to obtain nine-millimeter rounds for a pistol. Marshall went

to a friend’s house on Cortez Street to retrieve the ammunition. He then gave it

to Surtain, who was waiting outside with his girlfriend. The girlfriend dropped

Marshall off at a nearby bar; Surtain test-fired the pistol out the vehicle’s

window along the way. The girlfriend dropped Surtain off on Canal Street near

Warren Easton High School.

August’s girlfriend testified that Samuels came to her house on April 24th

to ask for August. Although August was not home the first time Samuels came

by, Samuels returned a second time after he had come back from work. Samuels

stayed for a while, then left. Around nightfall, Moss came to August’s home in

Samuels’s green van. Moss spoke with August, left, then returned between 8:00

and 8:30 PM. He and August left between 9:00 and 9:30 PM, purportedly to

celebrate August’s birthday. Samuels attended a church service that night.

Samuels later told a special agent of the Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF) that August had been shot in “the van,” ran

away, struggled with the shooter, and was shot once more. A trail of blood

consistent with this version of events was found at the murder scene. An

eyewitness testified that he and his wife were driving south on Bienville Street

between 9:50 and 10:00 PM on April 24th. Shortly after they crossed Jefferson

Davis Parkway, the witness saw a man bending over another man on the

median, and noticed the man on the ground had a large amount of blood on his

shirt. As the witness drove away, the first man shot the other one in the head.

An autopsy revealed that August had been shot six times, including once in the

head. Police recovered spent nine-millimeter casings from the murder scene.

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Surtain’s girlfriend testified that Surtain called her later that night to pick

him up because police were in the area. She picked him up about two blocks

away from Jefferson Davis Parkway, and dropped him off on Cortez Street.

Marshall testified that Surtain returned to the house on Cortez Street that

night. Surtain’s jeans were covered in blood. The next day, Surtain told Marshall

and others that “he shot a dude” who then wrestled Surtain to the ground,

causing him to drop the gun. Surtain said that he “slammed the dude,” retrieved

the gun, and shot him again. James testified that Samuels told him he had

cleaned out blood from the van with bleach or ammonia.

At 10:53 PM on April 24th, Samuels called James, and said, “Winston

ha[s] been killed. He’s dead. What do we need to do to get the claims process

going?” To avoid suspicion, James advised Samuels to wait before filing a claim.

Samuels’s sister’s claim was filed in June 2004, and his mother’s claim was filed

in July 2004. The insurance companies denied the claims due to

misrepresentations on the applications, and mailed refunds of the premiums to

Samuels, his sister, and his mother.

A New Orleans police investigator spoke with Moss and Samuels on the

morning of April 26th, and explicitly told Moss not to leave town until the

detective investigating August’s murder could interview him. Samuels’s

girlfriend took Moss to the bus station later that day, where he boarded a bus for

Detroit. Although Moss initially told police that August was alive and walking

up the street the last time Moss had seen him, he later told ATF agents that he

saw August lying in the fetal position after Moss exited a bar.

A GEICO employee testified that on April 28, 2004, someone requested

increased coverage on Samuels’s van. Samuels’s ex-wife and then-girlfriend,

Yolanda Fleming, testified that Moss called her and Samuels’s home on the

night of May 7, 2004, asking for Samuels. Samuels, who had just returned home,

spoke with Moss for about five minutes, then left the house. Samuels testified

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that he had also spoken with Surtain that night, but said their conversation had

been about drugs. Phone records showed that Samuels and Surtain called each

other twenty-six times on May 7th, including shortly before midnight.

Between 1:00 and 2:00 AM on May 8th, Samuels called Fleming to ask

about his van, which was parked outside their house. Fleming said the van was

okay, then went back to sleep. Phone records showed that Samuels called

Surtain immediately after Fleming hung up, and again nine minutes later.

Fleming was later awoken by an explosion, and saw that the van was on fire.

Security camera footage showed that two individuals carrying something

approached the van that night and broke the passenger window. Shortly

thereafter, the van ignited. A fire inspector testified that the arsonists had

probably poured a flammable liquid into the car and set fire to it.

After Fleming alerted emergency services, she called Samuels to tell him

what had happened. He instructed her to give the firemen and police a piece of

paper on which she had, at his direction, written times and dates when he had

purportedly received threatening phone calls. Fleming testified that she had

never received any threatening phone calls or been present when Samuels

received one. Samuels later suggested to his friend, Tony Veal, that the arsonists

destroyed the van because they thought Samuels had killed August. Upon being

questioned about the threats, Samuels was unable to relate any details about

their nature or content.

The fire inspector who examined the van testified that it was abnormally

parked in an area where it would not cause Samuels’s house to catch fire, but

was still in view of the security camera. Samuels stated that he had moved the

van between 2:00 and 3:00 PM on May 7th to wash it. The investigator noticed,

however, that the closest water spigot was on the corner of the house opposite

the van. Samuels reported the fire to his insurance company on May 8th. The

insurance company issued a check to him for $4,094, which he later cashed.

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Three years after these events took place, Surtain and Marshall were

apprehended in a burglary. Acting on information provided by Marshall, the

ATF initiated an investigation, during which ATF agents interviewed Samuels

about the life insurance policies he had obtained from James. Although he

sought to appear cooperative and provided some information about the murder,

Samuels told the agents, “I didn’t have any life insurance on [August].” The

agents knew this statement was false because they had obtained insurance

records showing that Samuels’s company had paid the premiums. Samuels

warned James that agents had interviewed him, and would likely seek to

interview James as well. He warned James not to “rat,” while at the same time

making the motion of pulling a gun trigger.

The government later indicted Samuels, Moss, Surtain, and three other

co-defendants. While under indictment, Surtain spoke about his case to his

cellmate in St. Bernard Parish Jail, Orlando Brown. He told Brown, inter alia,

that his case involved arson and fraud; he was not worried about being convicted

because he had disposed of the gun he had used to commit his crime; he had not

been charged with murder; he had sent someone to pick up the murder victim;

he had “tussled with the guy and then he shot him”; he was not worried about

his child’s mother or her brother testifying against him because he knew at

which jail the brother was being housed; his case involved insurance; his child’s

mother and her brother were beneficiaries, but he was not a main beneficiary;

and “if everything went right,” he would be paid for his part in his crime. He also

stated that “they had a policy to get this guy, he was supposed to pick the guy

up on his birthday.” Insurance records established that August was murdered

the day before his twenty-seventh birthday. While he was incarcerated, Surtain

made two recorded phone calls—one to Samuels’s father and another to

Samuels. Surtain asked Samuels’s father to tell Samuels that he was

“dummying up all the way around,” and that it would be best if Samuels would

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also “dummy up.” In Surtain’s call to Samuels, they agreed not to cooperate with

investigators.

After an eight-day trial, the jury found Surtain and Moss guilty of

conspiracy to commit mail and wire fraud, and use of fire to commit obstruction

of justice in relation to the van fire. Moss was also found guilty on one count of

use of fire to commit mail fraud in relation to the house fire. Samuels was found

guilty on all fifteen counts. Once again, these included one count of conspiracy

to commit mail and wire fraud, three counts of mail fraud, seven counts of wire

fraud, one count of use of fire to commit obstruction of justice, two counts of use

of fire to commit mail fraud, one count of making a false statement, and aiding

and abetting. 18 U.S.C. §§ 2, 371, 844(h)(1), 1001, 1341, 1343.

Moss and Surtain were respectively sentenced to 420 months’ and 180

months’ imprisonment. Samuels was sentenced to 900 months’ imprisonment.

They timely appealed.

II. DISCUSSION

On appeal, Surtain argues that the evidence was not sufficient to convict

him on Count 1 (conspiracy) and Count 12 (use of fire to commit obstruction of

justice). Moss also challenges his conviction on Count 12. Samuels raises a host

of issues on appeal, including multiplicity, evidentiary sufficiency, improper

testimony, failure to sever the defendants’ trial, prosecutorial misconduct, and

procedural unreasonableness of his sentence. We address each issue in turn.

A. Surtain’s Conspiracy Conviction

1. Legal Standards

By moving for a judgment of acquittal immediately after the government

rested, Surtain properly preserved his evidentiary sufficiency argument. Fed. R.

Crim. P. 29(a); United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007). A

challenge to the sufficiency of evidence supporting a criminal conviction is

reviewed de novo. United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).

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“When reviewing the sufficiency of the evidence, this Court views all

evidence, whether circumstantial or direct, in the light most favorable to the

Government with all reasonable inferences to be made in support of the jury’s

verdict.” United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997). “[W]e

consider whether ‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” United States v. Jara-Favela,

686 F.3d 289, 301 (5th Cir. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). “The evidence need not exclude every reasonable hypothesis ofinnocence

or be completely inconsistent with every conclusion except guilt, so long as a

reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.” Moser, 123 F.3d at 819.

A conspiracy conviction under 18 U.S.C. § 371 requires proof beyond a

reasonable doubt of: “(1) an agreement between two or more persons to pursue

an unlawful objective; (2) the defendant’s knowledge of the unlawful objective

and voluntary agreement to join the conspiracy; and (3) an overt act by one or

more of the members of the conspiracy in furtherance of the objective of the

conspiracy.” United States v. Coleman, 609 F.3d 699, 704 (5th Cir. 2010).

“A jury is free to infer the existence of a conspiracy from the presence,

association, and concerted action of the defendant with others.” United States v.

Curtis, 635 F.3d 704, 719 (5th Cir. 2011) (internal quotation marks and citation

omitted). Knowledge ofthe conspiracy’s unlawful objective “may be inferred from

surrounding circumstances.” United States v. Grant, 683 F.3d 639, 643 (5th Cir.

2012) (internal quotation marks and citation omitted).

2. Discussion

Surtain’s evidentiary sufficiency challenge focuses on the second

conspiracy element. He argues the government failed to establish that he knew

August was to be murdered in furtherance of an insurance fraud scheme. We

disagree.

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Insurance agent James’s testimony established the existence of a

conspiracy to obtain life insurance proceeds by murdering August. Samuels

initially asked his brother Chris to kill August. After Chris failed to do this,

Samuels twice called Surtain on the day of August’s murder. Other testimony

established that, on the night of August’s murder, Surtain obtained ammunition

from Marshall, was dropped off near the site of August’s murder, and later

returned to Marshall’s friend’s house with blood covering his clothes. He later

described the murder to Marshall. James testified that Samuels called him

shortly after August’s death to ask how to submit a life insurance claim.

According to Surtain’s cellmate, Brown, Surtain said in jail that he would

not be arrested for a murder he had committed because he was not the “main”

or “prime” beneficiary of insurance policies on the murder victim’s life.

Significantly, Surtain told Brown that “they had a policy to get this guy.” He also

said that if everything went well, he would still get paid. The jury could have

inferred that Surtain was promised money for murdering August, and had been

told that the money would come from an insurance policy. This inference is

strengthened by the fact that Samuels showed his brother the fraudulent

insurance policy to induce him to kill August. The jury could have reasonably

inferred that Samuels also would have presented the insurance policy to Surtain

as proof of payment ability. The evidence thus was sufficient to establish that

Surtain knew the conspiracy’s objective was to commit insurance fraud. See

Jackson, 443 U.S. at 319.

Surtain attacks Brown’s testimony on two grounds. First, he incorrectly

contends that the jury was not permitted to rely on Brown’s testimony because

evidence of Surtain’s extra-judicial statements wasuncorroborated.We conclude

that “substantial independent evidence” justified reliance on Brown’s testimony.

United States v. Sterling, 555 F.3d 452, 456 (5th Cir. 2009). He accurately

related details of the conspiracy that Surtain had provided, and which 

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corresponded with other evidence offered at trial. These included the nature of

the charges against Surtain, details of the murder, and Surtain’s lack of concern

that his “baby mama and her brother” would testify against him. Accordingly,

the jury could justifiably rely on Brown’s testimony respecting Surtain’s

jailhouse statements. See id. (federal courts do not apply the traditional corpus

delicti doctrine (citing Opper v. United States, 348 U.S. 84, 93 (1954))).

Second, Surtain states in his brief that Brown “agreed that Mr. Surtain

had no knowledge of the insurance fraud prior to the death of Mr. August.” We

can find no record support for this assertion. Surtain also contends that

Marshall made the same representation. Although Marshall testified that

Surtain had not mentioned anything to him about an insurance scam, Marshall

never affirmatively stated that Surtain had no knowledge of the scam.Moreover,

it is unclear how Marshall might have obtained such knowledge.

B. Surtain’s and Moss’s Use-of-Fire Convictions

1. Legal Standards

Because Moss and Surtain preserved their evidentiary sufficiency

argument as to Count 12 (use of fire to commit obstruction of justice and aiding

and abetting), we apply de novo review, viewing all evidence in the light most

favorable to the verdict. McDowell, 498 F.3d at 312; Moser, 123 F.3d at 819. We

“must affirm if any reasonable construction of the evidence could establish the

defendant’s guilt beyond a reasonable doubt.” United States v. Booker, 334 F.3d

406, 409 (5th Cir. 2003) (internal quotation marks and citation omitted).

A conviction under 18 U.S.C. § 844(h)(1) for use of fire to commit a felony

requires sufficient proof that the defendant (1) used fire (2) to commit a felony

that can be prosecuted in a court of the United States. United States v. Nguyen,

28 F.3d 477, 481 (5th Cir. 1994). A person commits obstruction of justice when

he “corruptly alters, destroys, mutilates, or conceals a record, document, or other

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object, or attempts to do so, with the intent to impair the object’s integrity or

availability for use in an official proceeding.” 18 U.S.C. § 1512(c)(1).

The federal aiding and abetting statute provides that “[w]hoever commits

an offense against the United States or aids, abets, counsels, commands, induces

or procures its commission, is punishable as a principal.” 18 U.S.C. § 2. A

conviction under this provision requires sufficient proof that “the elements of the

substantive offense occurred and that the defendant associated with the criminal

venture, purposefully participated in the criminal activity, and sought by his

actions to make the venture succeed.” United States v. Garcia, 242 F.3d 593, 596

(5th Cir. 2001).

2. Discussion

The government argues that Moss counseled Samuels to destroy the van,

which permitted Moss’s use-of-fire conviction on an aiding-and-abetting theory.1

18 U.S.C. § 2. It relies on evidence showing that (1) Moss had a strong motive to

destroy the murder evidence in the van; (2) Moss placed a five-minute phone call

to Samuels approximately five-and-a-half hours before the van was burned; and

(3) Moss was returning a call that Samuels had placed to Moss’s “burner” cell

phone, which had been used only in connection with criminal activity. As we will

discuss, the evidence was sufficient to convict Moss on Count 12.

As outlined above, the trial evidence established that Moss had driven

August to the murder site in the van, and that Surtain had killed him. James

testified that Samuels told him he had cleaned blood out of the van shortly after

August’s murder. Because the blood could have linked all three defendants to

1 Although the district court gave the jury a co-conspirator liability instruction, it

specifically instructed the jury that the instruction applied only to Counts 2 through 11.

Accordingly, we will not consider co-conspirator liability with respect to Count 12. See United

States v. Crain, 33 F.3d 480, 486 n.7 (5th Cir. 1994) (citing Pinkerton v. United States, 328

U.S. 640, 645 (1946)).

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August’s murder and the related insurance fraud scheme, the jury could have

inferred that they had an overwhelming motive to destroy this evidence.

Viewed in the light most favorable to the verdict, the phone calls from

Samuels’s phone show that he was urgently trying to contact Moss on the night

of the van fire. Moss had returned to Detroit on April 26, 2004. Samuels called

Moss’s cell phone at 9:23 PM on May 7th, then checked his voicemail. He called

Moss’s girlfriend four minutes later, and spoke with her for two minutes.

Immediately after this call, Samuels called a house near Detroit. Records showed

a call from Moss to his girlfriend at 9:30. Samuels called Surtain at 9:31. Moss

called Samuels’s house at 9:33, just after Samuels had returned home. The two

spoke for five minutes, and Samuels left immediately after the call ended.

Between Moss’s departure from New Orleans and that night, Samuels and Moss

had called each other four times—three times on the night Moss left for Detroit

(a one-minute call, and two calls in quick succession several hours later, lasting

seven seconds and fifty-five seconds), and once on May 1st (one minute).

The phone at which Samuels first tried to reach Moss is also significant.

Phone records showed that Surtain and Samuels tended to call this phone—a

“burner” cell phone with an Indianapolis area code—only during periods when

they were involved in criminal activity in which Moss also participated,

including in the days leading up to August’s murder. The defendants further

highlighted this phone’s significance by denying their knowledge of the phone

or its connection to Moss. Surtain told investigators that the phone number was

associated with a woman he had met at the New Orleans Convention Center.

Although Moss’s ex-wife testified that Moss had used this phone to call her, he

told investigators he had no knowledge of the phone number associated with it.

He went so far as to deny having had any cell phone in April 2004, even though

Samuels made calls to his phone at that time. Viewed in the light most favorable

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to the verdict, Samuels’s calling this phone indicated that he wished to discuss

criminal activity with Moss.

Moreover, the jury could have reasonably inferred that Moss was

Samuels’s go-to man for advice about incendiary devices. After all, Samuels had

summoned him from Detroit to New Orleans to burn down the Landry house.

True, the fact that Moss set his own hair on fire in that incident implies that

Samuels’s confidence in him might have been misplaced, but the point stands

that Samuels knew Moss to have experience with setting things on fire.

Although the jurors did not know and could not have known with certainty

the content of the phone conversation, they hardly could have believed that

Samuels called Moss to discuss the weather. Samuels had not spoken with Moss

in days, yet he suddenly and urgently sought to contact Moss mere hours before

the van fire. Given the strong inference that they spoke about the van fire, and

Moss’s overwhelming motive to destroy the murder evidence, the jury could have

found beyond a reasonable doubt that Moss, at minimum, gave words of

encouragement to Samuels in violation of the federal aiding-and-abetting

statute. See United States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008) (“An aider

and abettor is liable for criminal acts that are the ‘natural or probable

consequence of the crime’ that he . . . encouraged.” (citation omitted)); United

States v. Bowen, 527 F.3d 1065, 1078 (10th Cir. 2008) (“Even mere ‘words or

gestures of encouragement’ constitute affirmative acts capable of rendering one

liable under this theory.” (citation omitted)).

Moss argues that (1) the jury’s verdict “rest[ed] on mere suspicion,

speculation, or conjecture, or on an overly attenuated piling of inference on

inference,” United States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir. 2006)

(citation omitted); (2) his conviction must be reversed because there is no

evidence of what he discussed with Samuels on May 7th; and (3) he could not

have abetted Samuels’s offense because Samuels had already resolved to destroy

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the van. See United States v. Powers, 168 F.3d 741, 746–47 (5th Cir. 1999);

United States v. Galvan, 693 F.2d 417, 419–20 (5th Cir. 1982); Grimes v. United

States, 379 F.2d 791, 795 (5th Cir. 1967). We disagree.

“[W]hat the fact finder is permitted to infer from the evidence in a

particular case is governed by a rule of reason, and . . . fact finders may properly

use their common sense and evaluate the facts in light of their common

knowledge of the natural tendencies and inclinations of human beings.” United

States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (internal quotation marks and

citation omitted). “[C]ircumstances altogether inconclusive, if separately

considered, may, by their number and joint operation, especially when

corroborated by moral coincidences, be sufficient to constitute conclusive proof.”

Id. (quoting Coggeshall v. United States (The Slavers), 69 U.S. (2 Wall.) 383, 401

(1865)). Given Moss’s overwhelming motive to destroy the murder evidence, the

jury could have reasonably inferred that Moss sought to embolden Samuels in

this venture, even if only briefly during their five-minute conversation.

Samuels’s abruptly leaving his home after speaking with Moss—only minutes

after having arrived there—fits the narrative of a man who has just obtained

something he wanted or needed to accomplish his mission.

Moreover, Moss’s reliance on Powers, Galvan, and Grimes is misplaced. In

each of those cases, we reversed a conviction that was based primarily on

evidence that a phone call or phone calls had taken place. Powers, 168 F.3d at

746–47; Galvan, 693 F.2d at 419–20; Grimes, 379 F.2d at 795. Moss argues that

these cases stand for the proposition that “telephone records are not, standing

alone, sufficient evidence to support a” conviction. United States v. Williams, 264

F.3d 561, 574 (5th Cir. 2001) (citing Powers, 168 F.3d at 746–47; Galvan, 693

F.2d at 419). The instant matter is distinguishable, however, because the

government offered more than “telephone records . . . standing alone.” There is

strong circumstantial evidence of what Moss and Samuels discussed, and the

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jury could have inferred from Moss’s overwhelming motive and Samuels’s

behavior after their phone call that Moss encouraged Samuels to destroy his van

at some point during their not all too brief conversation. 

Finally, Moss argues that he could not have helped the van fire to succeed

because Samuels had already decided to destroy the van: Samuels had increased

the van’s insurance coverage days before, and parked it away from the house

earlier that day. We agree that the evidence shows Samuels likely would have

destroyed the van even if he had not been able to contact Moss. Nonetheless,

conviction on an aiding-and-abetting theory does not require the defendant’s acts

to cause the criminal venture to succeed. It requires only association with the

criminal venture, purposeful participation therein, and an affirmative act meant

to make the venture succeed. Garcia, 242 F.3d at 596. There was sufficient proof

that Moss satisfied these elements.

As for Surtain, he and Samuels called each other twenty-six times on May

7th, including shortly before midnight. Samuels called his girlfriend at 1:06 AM

and 1:12 AM on May 8th to ask if his van was okay; she said it was. Immediately

after the 1:12 phone call, Samuels called Surtain, and called him again at 1:22

AM. The van fire occurred at about 3:00 AM.

Surtain dismisses the large volume of calls between him and Samuels as

a natural result of their relationship. Samuels was Surtain’s drug dealer and the

brother of his child’s mother. Using their common sense, however, the jurors

could have found that even ties as close as these did not explain the flurry of

phone calls on May 7th, and that it was no coincidence they occurred the day

before the van fire. Moreover, Samuels’s relationship with Surtain does not

explain why Samuels twice called Surtain just after he learned his van was still

intact. This, combined with Surtain’s strong motive to destroy the murder

evidence, permitted the jury reasonably to infer that Surtain had encouraged

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Samuels during their phone calls to destroy the van. Accordingly, we will not

reverse Surtain’s conviction on Count 12.

C. Samuels’s Use-of-Fire Convictions

Samuels argues that his two use-of-fire convictions and sentences that

arose from the van fire must be vacated as multiplicitous. Samuels contends that

a single fire cannot give rise to separate convictions under § 844(h)(1), even if

that fire facilitated separately chargeable offenses—in this case, mail fraud and

obstruction of justice. 18 U.S.C. §§ 1341, 1512(c)(1). As we will discuss, we will

vacate Samuels’s use-of-fire sentences because Congress did not clearly state its

intent to impose multiple punishments under § 844(h)(1) in the instant

circumstances.

1. Legal Standards

Because Samuels did not raise a multiplicity objection before trial, he has

waived this challenge as to his use-of-fire convictions. See Fed. R. Crim. P.

12(b)(3)(B); United States v. Soape, 169 F.3d 257, 265–66 (5th Cir. 1999). He can

challenge the multiplicity of his sentences for the first time on appeal, however,

because they are to run consecutively to each other and to his other sentences,

and separate monetary assessments were imposed as to each conviction. See

United States v. Marroquin, 885 F.2d 1240, 1246 (5th Cir. 1989). We apply plainerror review because Samuels raised no objection at sentencing. United States

v. Ogba, 526 F.3d 214, 232 (5th Cir. 2008).

Section 844(h)(1) provides as follows:

Whoever uses fire or an explosive to commit any felony which may

be prosecuted in a court of the United States . . . including a felony

which provides for an enhanced punishment if committed by the use

of a deadly or dangerous weapon or device shall, in addition to the

punishment provided for such felony, be sentenced to imprisonment

for 10 years. In the case of a second or subsequent conviction under

this subsection, such person shall be sentenced to imprisonment for

20 years. Notwithstanding any other provision of law, . . . the term

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of imprisonment imposed under this subsection [shall not] run

concurrently with any other term of imprisonment including that

imposed for the felony in which the explosive was used or carried.

2. Discussion

“In general, ‘multiplicity’ is the charging of a single offense under more

than one count of an indictment.” Soape, 169 F.3d at 266. “The rule against

multiplicity is grounded in the Fifth Amendment’s prohibition against double

jeopardy . . . .” United States v. Buchanan, 485 F.3d 274, 278 (5th Cir. 2007)

(internal quotation marks and citation omitted). A multiplicity violation arises,

inter alia, when the government has impermissibly divided a single criminal act

or transaction into multiple violations, and separately charged each one under

the same provision. See id. at 278–79. Here, the government argues that a single

fire occasioned by Samuels permitted separate punishments under § 844(h)(1)

because it helped him to commit separately chargeable felonies.

We confronted similar circumstances in United States v. Evans, 854 F.2d

56 (5th Cir. 1988), rev’g in part 848 F.2d 1352 (5th Cir. 1988). In Evans, the

defendant had presented false identification to obtain a firearm and ammunition

in a single transaction. 848 F.2d at 1354. She was convicted for two violations

of 18 U.S.C. § 922(a)(6), which prohibits exhibiting “false, fictitious, or

misrepresented identification” “in connection with the acquisition . . . of any

firearm or ammunition.” In addressing the defendant’s double jeopardy

challenge, we concluded that the dispositive question was whether Congress had

intended to “punish as two offenses the single making of one false statement in

connection with one purchase on the same occasion of both a firearm and

ammunition.” Evans, 854 F.2d at 58. This requires us to determine “[w]hat

Congress has made the allowable unit of prosecution.” Id. at 59 (quoting United

States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)). If the statutory

text and legislative history are not dispositive of Congress’s intent, we apply the

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rule of lenity, resolving the multiple-punishment question in the defendant’s

favor. Id. (citing Ladner v. United States, 358 U.S. 169, 177 (1958); Bell v. United

States, 349 U.S. 81, 84 (1955)).

As set out above, § 844(h)(1) provides penalties for any person who “uses

fire or an explosive to commit any felony.” The government implicitly argues that

“use of fire” is the proper unit of prosecution, and that Congress thus intended

multiple punishments in Samuels’s circumstances. This interpretation is not

unreasonable; after all, Samuels “used fire” to commit mail fraud, and also “used

fire” to obstruct justice. Nonetheless, because the more lenient statutory

construction is no less plausible, we must apply the rule of lenity.

In United States v. Phipps, 319 F.3d 177, 186–89 (5th Cir. 2003), the

government offered a similar interpretation with respect to 18 U.S.C. § 924(c)(1).

Section 924(c)(1) provides punishment for any person who “uses or carries a

firearm” “during and in relation to any crime of violence or drug trafficking

crime.” The defendant in Phipps had committed two violent crimes—carjacking

and kidnaping—through the single “use” of a firearm. 319 F.3d at 186. After

examining § 924(c)(1)’s text and legislative history, we held that Congress’s

intent as to the “unit of prosecution” was ambiguous, thus compelling us to apply

the rule of lenity. Id. at 187–88. Accordingly, we held that the applicable unit of

prosecution was “the use, carriage, or possession of a firearm during and in

relation to a predicate offense.” Id. at 186. Because § 844(h)(1)’s text parallels

that of § 924(c)(1) in relevant part, the applicable unit of prosecution would also

appear to be the pairing of a “use” and a “felony.” See Phipps, 319 F.3d at 186.

The government argues thatits interpretation is supported by § 844(h)(1)’s

requirement that punishment under that provision be served consecutively to

any term of imprisonment imposed for the underlying felony. Section 924(c)(1)

also imposes consecutive punishment, however, and we considered and rejected

the same argument in Phipps, 319 F.3d at 187. Although this requirement

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undoubtedly evinces an intent to impose harsh punishment for § 844(h)(1)

violations when they occur, it does not establish what constitutes a violation.

Because we perceive no other part of the statutory text that materially

distinguishes § 844(h)(1) from § 924(c)(1), we are not compelled to reach a result

different from the one we reached in Phipps.

Nor does § 844(h)(1)’s legislative history provide relevant instruction. It

reveals only that Congress wished to discourage the widespread use of explosive

and incendiary devices to accomplish criminal objectives. As we explained in

Phipps, 319 F.3d at 187, such an expression of intent does not resolve the

ambiguity that confronts us. See Organized Crime Control Act of 1970, Pub. L.

No. 91-452, 84 Stat. 922, 957 (codified as amended in scattered sections of 18

U.S.C.); H.R. Rep. No. 91-1549 (1970), reprinted in 1970 U.S.C.C.A.N. 4007; see

also Anti-Arson Act of 1982, Pub. L. No. 97-298, 96 Stat. 1319 (adding “fire” to

18 U.S.C. § 844); H.R. Rep. No. 97-678 (1982), reprinted in 1982 U.S.C.C.A.N.

2631. Likewise, the legislative history of § 924(c)—the provision on which

§ 844(h) was originally modeled, H.R. Rep. No. 91-1549, at 69—does not answer

this question. See Phipps, 319 F.3d at 186–87 & n.6; Gun Control Act of 1968,

Pub. L. No. 90-618, 82 Stat. 1213, 1224 (codified at 18 U.S.C. § 921 et seq.); S.

Rep. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112.

Further supporting our decision today, we held in United States v. Severns,

559 F.3d 274, 291 (5th Cir. 2009), that a single “fire incident” did not support

multiple sentences under § 844(h)(1), even when that fire furthered multiple

predicate offenses. InSeverns,the government charged two § 844(h)(1) violations

after the defendant burned down her gun store in furtherance of one mail fraud

and one wire fraud offense. Analogizing the use-of-fire provision to § 924(c)(1),

we held that the defendant “may be prosecuted and punished for use of fire to

commit mail fraud or use of fire to commit wire fraud, but not both.” Severns,

559 F.3d at 291.

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The government argues that Severns is inapposite because the underlying

mail and wire fraud offenses in that case were committed to achieve the same

objective—to obtain fire insurance proceeds from the gun store’s destruction. 559

F.3d at 276–77. It contends that Samuels’s distinct criminal objectives in

burning his van—to destroy evidence and fraudulently obtain insurance

proceeds—permit a different result. Based on our § 924(c)(1) caselaw, we cannot

accept this reasoning. In United States v. Walters, 351 F.3d 159, 161 (5th Cir.

2003), the defendant was convicted on two § 924(c)(1) charges for a single

bombing, the predicate offenses being assaulting the federal officer who had

opened the explosive package and damaging the federal building in which the

package was opened. 18 U.S.C. §§ 111, 844(f). We rejected the government’s

argument that “dual criminal purposes” supported multiple punishments under

§ 924(c)(1), and vacated the defendant’s sentences. Walters, 351 F.3d at 173

(citing Phipps, 319 F.3d at 183). In light of § 844(h) and § 924(c)(1)’s parallel

textual structures, the identical purpose motivating each provision’s enactment,

H.R. Rep. No. 91-1549, at 69, and our past reliance on the latter provision to

interpret the former, Severns, 559 F.3d at 291, we have ample reason to extend

the Walters court’s holding to the instant matter.

Thus, applying the rule we articulated in Evans, 854 F.2d at 59, and

reiterating our decision in Severns, 559 F.3d at 291, we hold that it was error to

impose multiple sentences under § 844(h)(1) based on a single “fire incident” that

facilitated two underlying felonies. That Samuels had multiple criminal

objectives in causing the fire does not alter this result.

3. Plain-Error Review

Having held that it was error to impose a sentence on each of Counts 12

and 13, we must now determine whether this error was plain, and whether to

correct it. To establish plain error, Samuels must show that “(1) there is error;

(2) the error was clear and obvious, not subject to reasonable dispute; and (3) the

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error affected his substantial rights.” United States v. Hebron, 684 F.3d 554, 558

(5th Cir. 2012). We may “remedy the error, but only if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id.

Whether an error is “clear and obvious” depends on the clarity of

applicable law. See United States v. Meza, 701 F.3d 411, 434 (5th Cir. 2012)

(vacating the defendant’s multiplicitous sentences sua sponte because the error

was “clear in light of” controlling authority). “[T]he focus of plain error review

should be whether the severity of the error’s harm demands reversal, and not

whether the district court’s action . . . deserves rebuke.” United States v.

Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (citation omitted).

We have found plain error when there was “no relevant distinction[]” between

the case at bar and controlling precedent. Meza, 701 F.3d at 433.

The government has correctly noted that the facts in Severns are

somewhat different from those present in the instant matter. We think, however,

that this difference is so slight, the controlling rule in Severns so clear, the

weight of Walters so one-sided, and an expression of legislative intent supporting

the government’s position so lacking, that the decision we have reached today

was all but certain. Moreover, this error severely affects Samuels’s substantial

rights. Our view of his conduct in this matter notwithstanding, we cannot allow

an additional twenty-year term of imprisonment to be imposed when controlling

authority so clearly establishes its illegality. Accordingly, we will vacate his

sentences on Counts 12 and 13, remand for dismissal of one of these counts (at

the election of the government), and order resentencing. Meza, 701 F.3d at 434.

We deem the conviction on the remaining count affirmed. See id.

D. Samuels’s Mail Fraud Convictions

1. Legal Standards

Samuels argues there was insufficient evidence to support his mail fraud

convictions under Counts 3 and 4. He contends that the mailings underpinning

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these convictions were not made in furtherance of the life insurance fraud.

Although Samuels moved for acquittal at the close of the government’s evidence,

he did not renew this motion at the close of his defense. In these circumstances,

we review for plain error. United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.

2000)(per curiam). On plain-error review, an evidentiary insufficiency challenge

“will be rejected unless the record is devoid of evidence pointing to guilt or if the

evidence is so tenuous that a conviction is shocking.” United States v. Delgado,

672 F.3d 320, 330–31 (5th Cir. 2012) (en banc) (citation omitted).

A mail fraud conviction under 18 U.S.C. § 1341 requires sufficient proof

that: “(1) the defendant devised or intended to devise a scheme to defraud,

(2) the mails were used for the purpose of executing, or attempting to execute,

the scheme, and (3) the falsehoods employed in the scheme were material.”

United States v. Ratcliff, 488 F.3d 639, 643–44 (5th Cir. 2007). “One ‘causes’ the

mails to be used ‘[w]here one does an act with knowledge that the use of the

mails will follow in the ordinary course of business, or where such use can

reasonably be foreseen.’” United States v. Ingles, 445 F.3d 830, 835 (5th Cir.

2006) (alterations in original) (quoting Pereira v. United States, 347 U.S. 1, 8–9

(1954)). The material that has been mailed need not be “fraudulent in itself.”

United States v. Shively, 927 F.2d 804, 814 (5th Cir. 1991) (citation omitted). Our

decisions construing the wire fraud statute are equally applicable to matters

involving the mail fraud statute. United States v. Mills, 199 F.3d 184, 188 (5th

Cir. 1999) (citing Carpenter v. United States, 484 U.S. 19, 25 n.6 (1987)).

2. Discussion

The mailings underlying Counts 3 and 4 were related to the life insurance

scheme. The government offered evidence that the insurance company sent a

letter to Samuels’s mother—the other beneficiary on the policy—informing her

that her claim had been denied. The insurance company then mailed a premium

refund check to Samuels and his mother. Samuels concedes the fact of these

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mailings, and does not deny that he knew mailings would take place after he

applied for the policy. He argues instead that these mailings did not advance the

scheme’s objective.

Undeniably, Samuels’s life insurance fraud scheme failed. Because

Samuels had not disclosed August’s history of drug use or his past treatments

for gunshot wounds on the insurance application, the insurance company denied

coverage and refunded the premiums. Thus, the mailings we have described do

not, on their face, appear to have furthered the scheme.

Significantly, the mail fraud statute does not require the fraudulent

scheme to be successful. Adjmi v. United States, 346 F.2d 654, 657 (5th Cir.

1965); see also United States v. Loney, 959 F.2d 1332, 1337 n.14 (5th Cir. 1992)

(wire fraud). We have held that once a defendant obtains money from a fraud,

“actions taken to avoid detection” advance the fraudulent scheme because they

“allow the perpetrator to escape apprehension.” United States v. Allen, 76 F.3d

1348, 1363 (5th Cir. 1996) (wire fraud). To be sure, inasmuch as the mailings at

issue did not help Samuels obtain life insurance proceeds, they failed to advance

the scheme. But these mailings helped Samuels in a different way—they gave

Samuels notice of whether he should continue to seek proceeds by filing his own

claim as the second beneficiary. In an apparent effort to determine whether his

scheme would actually work, Samuels did not file his claim at the same time as

his mother’s. Because his mother’s claim was denied, he declined to file his own

claim, thus making it less likely that he would be investigated and discovered.

Samuels argues that a mail fraud conviction cannot rest on a mailing whose

“only likely effect . . . would be to further detection of the fraud or to deter its

continuation.” United States v. LaFerriere, 546 F.2d 182, 187 (5th Cir. 1977). As

we have discussed, however, the government makes a colorable argument that

the mailings at issue helped Samuels avoid detection.

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Assuming, arguendo, that “Plan B” mailings—i.e., mailings notifying a

would-be fraudster that he should end a well-advanced scheme so that he can

avoid detection and apprehension—are not “incident to an essential part of the

scheme” under our prior decisions, we cannot say it was plain error not to acquit

Samuels on this basis. See Ingles, 445 F.3d at 835; Allen, 76 F.3d at 1363. He

offers no decision by this or any other court squarely holding that “Plan B”

mailings cannot support a mail fraud conviction, nor does he cite any decision

that makes such a holding inevitable. Because the challenge Samuels raises is

thus “subject to reasonable dispute,” Hebron, 684 F.3d at 558, and because the

record is not “devoid of evidence pointing to guilt,” Delgado, 672 F.3d at 331, we

will not reverse Samuels’s mail fraud convictions.

E. Brown’s Testimony

Samuels argues that the district court plainly erred by allowing Brown

(Surtain’s cellmate) to offer incriminating testimony against him. As discussed

above, Brown testified that Surtain had told him: (1) He would not be found

guilty because he disposed of the gun used in the murder; (2) he was not worried

that “his baby mama and her brother” would testify against him because he

could “get to” the brother; and (3) he was not concerned about being connected

to the insurance fraud because he was not “a main beneficiary on the policies,”

although the person “that was in St. Charles [Parish Jail]” was a beneficiary.

Samuels contends that, although his name was not explicitly mentioned

in these statements, they nevertheless implicated him in Surtain’s crimes

because he was the person referred to as the “brother” and the person “in St.

Charles.” Samuels further asserts that this testimony amounted to inadmissible

hearsay, and violated his rights to confrontation, due process, and a fair trial.

Samuels concedes that plain-error review applies. United States v. Vargas-Soto,

700 F.3d 180, 182 (5th Cir. 2012).

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Because the statements at issue are nontestimonial, we reject Samuels’s

Confrontation Clause argument. See Davis v. Washington, 547 U.S. 813, 825

(2006) (statements made by one prisoner to another are “clearly

nontestimonial”). “[A] statement that is not testimonial cannot violate the

Confrontation Clause.” Brown v. Epps, 686 F.3d 281, 286 (5th Cir. 2012)

(alteration in original) (citation omitted); see also Davis, 547 U.S. at 823–24.

Samuels also argues thatthe admission of Brown’s statements violated his

rights to due process and a fair trial because Brown’s testimony was “unreliable”

and “extremely prejudicial.” Samuels relies on Bruton v. United States, 391 U.S.

123, 126 (1968), in which the Supreme Court held that a non-testifying codefendant’s confession inculpating the other defendant was inadmissible attheir

joint trial.2

 Samuels ignores that the Bruton rule “is a narrow one that applies

only to statements that directly implicate the defendant without reference to

other admissible evidence.” United States v. Jimenez, 77 F.3d 95, 98 (5th Cir.

1996). In other words, we have consistently held that Bruton “is not violated

unless a co-defendant’s statement directly alludes to the complaining defendant.”

United States v. Espinoza-Seanez, 862 F.2d 526, 534 (5th Cir. 1988) (citation

omitted) (collecting cases). Indirect references do not implicate Bruton. Id.

Here, Brown’s testimony does not directly implicate Samuels as a

participant in the criminal activity for which he was convicted. Brown’s first

statement—that Surtain admitted to disposing of the gun—does not implicate

Samuels at all. Additionally, Surtain’s comment that he could “get to” Samuels,

whom he did not mention by name, suggests only that Surtain was concerned

that Samuels might serve as a witness against him, not that Samuels was

himself a participant in the criminal scheme. Similarly, Surtain did not name

2 Although Samuels characterizes this as a due process and fair trial issue, we note that

Bruton properly is understood to be a Confrontation Clause case. Regardless, as we explain,

we find no error under Bruton.

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Samuels as the beneficiary of the insurance policy; rather, Samuels himself

admitted this in his opening statement.

In any event, we note also that Bruton has been further limited “to cases

where the admission of the incriminating statements was not within a firmly

rooted exception to the hearsay rule.” United States v. Saks, 964 F.2d 1514, 1525

(5th Cir. 1992). We recently addressed whether a hearsay exception applies in

circumstances analogous to those present here. United States v. Ebron, 683 F.3d

105, 132–34 (5th Cir. 2012). In Ebron, two prisoners (Mosley and Ebron) were

alleged to have murdered a fellow inmate. Id. at 120–21. A third prisoner

(Bailey) testified at Ebron’s trial that, while Mosley and Bailey were cellmates,

Mosley admitted to him that he and Ebron had committed the murder. Id. at

132–33. On appeal, Ebron maintained that although the statement qualified as

a statement against penal interest under Federal Rule of Evidence 804(b)(3) as

to Mosley, its admission against Ebron was improper. Id. at 133. We rejected

Ebron’s argument, however, concluding that “[u]nlike the situation where a

declarant implicates himself and the defendant in a statement made to officials,

a statement made outside a custodial context does not provide the same set of

incentives that create the risk of an unreliable statement.” Id. The same is true

here. Thus, contrary to Samuels’s argument, the district court did not err in

admitting Brown’s challenged testimony, as the statements at issue qualify

under the hearsay exception for statements against penal interest.

For these reasons, we reject Samuels’s contention that the district court

plainly erred in admitting Brown’s testimony. Further, even were we to accept

that the court erred, we conclude that Samuels still could not prevail on plainerror review because he is unable to demonstrate that this purported error

affected his substantial rights. Even absent the complained-of statements, the

evidence of Samuels’s guilt was overwhelming.

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F. Trial Severance

Samuels argues that the district court should have severed his trial from

that of Moss and Surtain. He did not move for severance at trial, and did not join

in his co-defendants’ multiple, unsuccessful motions to sever. Samuels thus

contends on appeal that the court should have severed the proceedings sua

sponte even though it repeatedly denied his co-defendants’ severance motions.

A defendant must move for severance before trial, or show good cause for

failing to do so. Fed. R. Crim. P. 12(b)(3)(D), 14(a). Because Samuels has done

neither, he has waived this argument. United States v. Cantu-Ramirez, 669 F.3d

619, 624 (5th Cir. 2012).

G. Prosecutorial Misconduct

Samuels argues that the prosecutors’ conduct rendered his trial

fundamentally unfair. He raises three misconduct issues on appeal, contending

that the prosecutors (1) repeatedly and improperly asked leading questions;

(2) made improper remarks in their closing and rebuttal arguments; and

(3) misused a summary witness to recapitulate earlier witnesses’ testimony.

In deciding a claim of prosecutorial misconduct, we first “assess whether

the prosecutor made an improper remark. If the prosecution has made an

improper remark, we must then ask whether the defendant was prejudiced.”

Ebron, 683 F.3d at 140 (internal citation omitted). Although we usually consider

each remark individually, “[t]here may be instances where improper statements,

which are not individually prejudicial enough to require reversal, could cumulate

to affect the defendant’s substantial rights. However, such instances are rare in

this circuit.” Id. (internal quotation marks and citation omitted). “In considering

whether prosecutorial misconduct warrants reversal,the determinative question

is whether the prosecutor’s remarks cast serious doubt on the correctness of the

jury’s verdict.” Delgado, 672 F.3d at 334–35 (internal quotation marks and

citation omitted).

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1. Leading Questions

Federal Rule of Evidence 611(c) provides that “[l]eading questions should

not be used on direct examination except as necessary to develop the witness’s

testimony. Ordinarily, the court should allow leading questions: (1) on crossexamination; and (2) when a party calls a hostile witness, an adverse party, or

a witness identified with an adverse party.” Samuels offers fourteen instances

of purportedly improper questioning by the prosecutors, and contends that their

cumulative effect was to render his trial fundamentally unfair.

Although it cannot be denied that the prosecutors repeatedly asked

leading questions, and that the court admonished them again and again,

Samuels has not established that such questioning “cast serious doubt on the

correctness of the jury’s verdict.” Delgado, 672 F.3d at 334–35 (citation omitted).

As to most of the instances that Samuels cites, he does not explain how prejudice

resulted; ignores that other, properly elicited testimony established the facts he

sought to suppress; or fails to mention that the court stopped the improper

questioning before the witness responded. Even assuming that the remaining

occurrences prejudiced Samuels in some measure, he does not explain whether

or how they materially affected the jury’s verdict.

Samuels calls our attention to judicial statements respecting the harm

that leading questions can cause. United States v. Durham, 645 F.3d 883, 891

(7th Cir. 2011) (“[V]alid concerns regarding the overuse of leading questions

exist.”); Stine v. Marathon Oil Co., 976 F.2d 254, 266 (5th Cir. 1992) (“[A]ny good

trial advocate who is allowed leading questions can both testify for the witness

and argue the client’s case by the use of leading questions.”); United States v.

McGovern, 499 F.2d 1140, 1142 (1st Cir. 1974) (leading questions “may supply

a ‘false memory’” in a friendly witness (citation omitted)). However, he offers no

analogous case—indeed, he offers no case at all—in which a judgment of

conviction has been reversed based on leading questions. We do not suggest that

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leading questions never cause reversible error. Before we will grant appellate

relief, however, we must be convinced that such questions affected a defendant’s

substantial rights. Ebron, 683 F.3d at 140. Samuels has not convinced us of this.

2. Prosecutors’ Closing and Rebuttal Arguments

Samuels further contends that, during the prosecutors’ closing and

rebuttal arguments, they (1) argued facts that were not in evidence and misled

the jury, (2) improperly vouched for government witnesses, and (3) improperly

attacked the defendants and defense counsel. Because Samuels did not object to

the purportedly improper statements, we review for plain error. Id. at 141.

a. Facts not in Evidence

In discussing Samuels’s role in the Landry house fire, the prosecutor

stated: “And you recall Mr. Samuels who testified, obviously, before lunch,

talking about this is some kind of an electrical fire. . . . But you see, con men,

they think they can convince people. That was an arson.” Samuels contends that

he never offered such testimony. In fact, Samuels testified that Landry had

burned down his own house and blamed faulty electrical wiring. The prosecutor

thus appears to have misunderstood or misremembered Samuels’s testimony in

a way that made Samuels appear to be dishonest. This mistake did not affect the

integrity of the proceedings, however. As we will explain, witness credibility was

a main point of contention in closing arguments, and ample evidence permitted

the jury to infer that Samuels had offered false testimony.

In discussing the van fire, the prosecutor stated that a New Orleans fire

investigator said the van had been moved away from Samuels’s house to keep

the house from catching fire and to place the van in full view of the security

camera, thus aiding his alibi. As Samuels concedes, the investigator testified

that the security camera captured the arson on tape, and that the house would

have been damaged if the van had been parked closer to it. Although it is true

that the investigator did not say these were Samuels’s reasons for parking the

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van where he did, the jury could have made this reasonable inference based on

the investigator’s testimony.

On rebuttal, the prosecutor criticized Samuels for allowing Surtain—his

sister’s ex-boyfriend—to live in his apartment even though his sister bore ill will

toward him following their break-up. The government thus suggested that

Samuels would not have permitted Surtain to stay with him but for Surtain’s

assistance in August’s murder. Samuels contends that none of the trial evidence

revealed MariaSamuels’s feelings about her relationship with Surtain. However,

Samuels’s cross-examination testimony established that Maria’s relationship

with Surtain ended, and that she gave their baby to her parents. Samuels sought

to justify his continuing relationship with Surtain by noting that Surtain

remained his niece’s father. Accordingly, although the prosecutor’s rebuttal

statement did not perfectly characterize the evidence, neither was it unfairly

prejudicial.

Finally, the prosecutor sought to discredit Samuels’s alibi—his presence

at church while Moss and Surtain were dealing with August—by stating that

“[t]his guy went to church for the first time in [his] life, while this guy drove his

van to lure him out so he could be killed.” In the context of the entire proceeding,

a reasonable jury would have recognized that this statement was not meant to

represent facts in evidence. Samuels’s apparent modus operandithroughout the

events recounted at trial was to establish alibis to distance himself from the

crimes he had planned: He was at a church service while Surtain was killing

August, was away from his home while others set his van on fire, and had

instructed Landry to visit a client while Moss was setting fire to his house.

Further, he appeared to play up his involvement in church activities—he

testified that his great, great grandfather had founded the church, and that he

had reminded his mother to retrieve a robe they were to give their minister.

Accordingly, a reasonable juror would have recognized the prosecutor’s

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hyperbolic statement as an attack on Samuels’s credibility. See Ebron, 683 F.3d

at 143 (“[T]he use of colorful pejoratives is not improper.”).

b. Vouching

Samuels contends thatthe prosecutor improperly vouched for government

witnesses’ credibility, including that of ATF agents Robert Stoltz and Wyatt

Evans, and Samuels’s cooperating co-defendants. “[A] personal assertion by a

prosecutor of a government witness’s credibility is impermissible.” United States

v. Gracia, 522 F.3d 597, 601 (5th Cir. 2008). Personal vouching does not

necessarily constitute reversible error, however.“The test for improper vouching

for the credibility of a witness is whether the prosecutor’s expression might

reasonably lead the jury to believe that there is other evidence, unknown or

unavailable to the jury, on which the prosecutor was convinced of the accused’s

guilt.” United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010) (internal

quotation marks and citation omitted).

As to Stoltz and Evans, the prosecutor stated:

And these two phenomenal agents, Bobby Stoltz and Wyatt Evans,

they went backwards. They went to the Augusts. “Hmm, insurance.

Let’s dig a little deeper.” That led to Stefan James, and that led to

this prosecution. Just phenomenal work that you saw over the last

week. . . . [W]e put on a compelling case, thanks to those two

gentlemen right here.

Samuels argues that the prosecutor thus “wrapp[ed] his witnesses in the

government’s cloak of veracity and invok[ed] his personal status as the

government’s attorney to assure the jury of the credibility of those agents.”

Gracia, 522 F.3d at 606–07. We disagree. The prosecutor’s comments that Stoltz

and Evans were “phenomenal” and did “phenomenal work” appear to have been

based on his description of their investigation. Further, he did not specifically

refer to their credibility as witnesses. Accordingly, we do not believe that a jury

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indisputably would have believed the prosecutor’s comments were based on

evidence not offered at trial. See McCann, 613 F.3d at 495.

As to the cooperating witnesses, the prosecutor stated in rebuttal:

Why in the world would someone come in and tell the truth about

themselves, go in and plead guilty before this Court, be facing an

enormous amount of penalties, and then start lying about somebody

else? In hopes – in hopes – that they can bamboozle the judge who

will then say, “If the government gets bamboozled, oh, I’m going to

grant a reduction.” It makes no sense.

* * *

Well, you put yourself in all those witnesses’ shoes with these

cowboys, with these dudes, and you decide whether or not you are

at risk.

Orlando [Brown], who will be in jail for a long time; Stefan [James],

who will be in jail for a long time; Damian [Landry], who will be in

jail for a long time; the family members, your family members, your

wife, your brother, your aunt. You decide whether or not there is

any risk, if it’s all cotton. That you have the hope, maybe, hopefully,

that a judge will give you a decent sentence versus whether or not

these guys will.

Although a prosecutor “cannot express a personal opinion on the credibility of

witnesses,” he or she “may argue fair inferences from the evidence that a witness

has no motive to lie.” Gracia, 522 F.3d at 601. From the above statements, we

perceive no personal vouching for the cooperating witnesses’ credibility. In each

of these statements, the government fairly implied, based on record evidence,

that the witnesses had strong motives not to lie. Moreover, the prosecutor made

these comments on rebuttal to counter specific attacks defense counsel had made

on the witnesses’ credibility. Bolstering is permitted in such circumstances.

McCann, 613 F.3d at 495.

Relying on one of our previous cases, Samuels nevertheless argues that

reversible error occurred. In Gracia, four of the prosecutor’s statements were at

issue: (1) He stated that border patrol agents who had testified at trial were

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“very, very credible”; (2) he asked the jury whether an agent “who has worked

as a law enforcement agent for many years, that is his career, that is his chosen

life, a man from this area, a man with a family . . . would throw all that away by

taking this stand and taking an oath and lying to you to get Mr. Gracia”; (3) he

urged the jury “to respect [the agents’] efforts as law enforcement officials and

to believe the testimony that they offered”; and (4) he stated that “to acquit

Gracia, [the jury] would have to believe that the agents ‘got out of bed’ on the

day they arrested Gracia and decided that this was ‘the day that [they] were

going to start [a] conspiracy to wrongfully convict Mr. Gracia.’” 522 F.3d at 600

(third and fourth alterations in original). On plain-error review, we reversed the

defendant’s conviction because each of these statements urged conviction based

on “something uniquely within the prosecutor’s knowledge.” Id. at 601. As we

have discussed, however, the prosecutor in the instant matter made fair

inferences respecting the witnesses’ credibility, and referred to the record

evidence on which his statements were based. Accordingly, Samuels’s reliance

on Gracia is misplaced.

c. Character Attacks

Samuels argues that the prosecutors improperly called him a “con man”

and a “liar,” and made inappropriate remarks about defense counsel:

But you see, con men, they think they can convince people.

* * *

You see, all that was designed to do, Mr. Con Man, you see, it’s a

preemptive strike . . . .

They have lied every chance that they got so that they can try to

bamboozle you.

* * *

[Defense counsel] forgot to talk about [Samuels’s] performance up

there. Because you had the opportunity to listen to two hours of

fabrication. It’s a pathological liar. A guy that had an answer, and

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a bad answer, for everything. Even when he looked at himself

telling the 1,001 lie[s] to the agents in April of 2009 . . . . He can’t

keep a story straight . . . .

And that’s the benefit of you being able to watch somebody on the

witness stand. Because you really did get to see a master – I’m not

saying he’s not a master. But you got to see a pathological liar.

* * *

He can connive.

The prosecutor also attacked defense counsel’s arguments as “defense lawyer

myths” and “ultimate lawyering.”

“A prosecutor may not go beyond the evidence and attack a defendant’s

character or veracity.” Delgado, 672 F.3d at 336. In the instant matter, the

government relied heavily on cooperating witnesses’ testimony, and Samuels’s

defense hinged on the testimony he offered to establish that the government had

gotten the wrong man. Witness credibility thus became a point of contention in

both sides’ closing arguments; defense counsel attacked government witnesses’

truthfulness just as much as the government attacked Samuels’s.

As we have recently discussed, “[i]mproper assertion of a prosecutor’s

personal opinion is easily recognized. . . . [I]t includes personal expressions such

as ‘I think,’ ‘I know,’ ‘I believe,’ or other expressions that either explicitly or

implicitly convey the prosecutor’s personal impressions.” Id. at 336–37 (internal

quotation marks and citations omitted). The prosecutor in the instant matter did

not employ such phrases or otherwise squarely imply that he was offering

credibility assessments not based on trial evidence. Indeed, each of the

purportedly improper statements Samuels cites was couched in evidence that

tended to show he had lied or sought to mislead others on specific occasions.

“While the prosecutor should have chosen his words more carefully, his

argument differs from improper argument in that its meaning and effect would

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have been no different had he simply added the words ‘As I’ve explained, the

evidence shows’ before stating that [Samuels] had lied.” Id. at 337.

The prosecutor’s comments about “defense lawyer myths” and “ultimate

lawyering” were also made in the context of a battle over witness credibility.

Fairly construed, these were attacks on defense counsel’s arguments, not

personal attacks againstthe defendants’ attorneys. Accordingly, these comments

were not improper.

On plain-error review, we cannot say that the prosecutor’s comments in

closing and rebuttal arguments affected Samuels’s substantial rights or “cast

serious doubt on the correctness of the jury’s verdict.” Ebron, 683 F.3d at 140

(citation omitted); Delgado, 672 F.3d at 334–35. Accordingly, we will not reverse

Samuels’s convictions on this basis.

3. Summary Witness Testimony

The government’s final witness was New Orleans police detective and ATF

task force officer Robert Stoltz. Much of his testimony concerned the records of

phone calls from, to, and between the defendants. Samuels argues that the

government improperly used Stoltz’s testimony to recapitulate earlier

government witnesses’ testimony, in effect offering a “supplemental closing

argument.” He notes five instances in which Stoltz testified that earlier

witnesses had confirmed their association with certain phone numbers or

discussed the timing of certain calls.

Samuels also complains that the government asked ATF agent Wyatt

Evans about Damian Landry’s testimony respecting money he said he had given

Samuels. Evans testified that Landry had not said he gave Samuels insurance

money, but had instead given Samuels money from his tax refund.

The evidentiary rule respecting summary witnesses “does not contemplate

summarization of live testimony presented in court.” United States v. Nguyen,

504 F.3d 561, 572 (5th Cir. 2007) (citation omitted). “Summary witnesses may

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not be used as a substitute for, or a supplement to, closing argument.” Id.

(internal quotation marks and citation omitted).

Assuming, arguendo, that these witnesses’ recapitulation of prior

testimony constituted error, we do not agree that it affected Samuels’s

substantial rights or “seriously affect[ed] the fairness, integrity, or public

reputation of” his trial. Hebron, 684 F.3d at 558. The witnesses made minor

references to other witnesses’ statements; this made up a trifling part of their

overall testimony. Their testimony thus did not constitute “supplemental closing

arguments,” and reversal is not justified on this basis.

H. Samuels’s Sentence

Samuels also argues that his sentence was procedurally unreasonable and

violated his Sixth Amendment right to trial by jury and Fifth Amendment right

to due process. Specifically, he contends that although he was not charged with,

and the jury did not find him guilty of, August’s murder, his offense level under

the Sentencing Guidelines was driven primarily by this supposedly unproven

offense conduct.3 Because Samuels did not raise this objection at sentencing, we

review his sentence for plain error. United States v. Peltier, 505 F.3d 389, 392

(5th Cir. 2007).

Although Samuels was initially sentenced to 900 months’ imprisonment,

we have ordered that his sentences on Counts 12 and 13 be vacated on

multiplicity grounds, and that a sentence be imposed as to only one of these

3 Samuels further contends that he could not fully defend himself because substantial

evidence was washed away by Hurricane Katrina. Samuels does not elaborate on what

“substantial evidence” was lost, and his record citations are uninstructive or irrelevant.

He also argues that because he was not charged with August’s murder after New

Orleans police investigated the matter, there must not have been enough evidence to support

a murder conviction. We are not concerned with what evidence was available to New Orleans

police at that time, nor what evidence would be required for a murder conviction under

Louisiana law. Samuels ignores that the trial evidence presented in the instant matter

overwhelmingly proved that, as alleged in the superseding indictment, he had August killed

for insurance money.

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counts. The sentences we have vacated (and the sentence that must be

reimposed on remand) are mandatory and inflexible, and are to be served

consecutively to any other term of imprisonment. 18 U.S.C. § 844 (h)(1). Because

Samuels’s challenge essentially goes to his Guidelines offense level, which was

not affected by his convictions or sentences on Counts 12 and 13 (and thus is not

affected by our mandate respecting these counts), we will address his Guidelines

argument in the interest of judicial efficiency. See United States v. MagdalenoSanchez, 169 F. App’x 830, 831 (5th Cir. 2006) (unpublished) (per curiam)

(addressing Guidelines argument “in the interest of judicial efficiency and to

provide guidance on remand” even though the defendant’s sentence had already

been vacated on other grounds). We conclude that no error arose from Samuels’s

sentence.

Samuels correctly notes that he was not separately charged with murder

in this matter. He was, however, convicted of conspiracy to commit mail and wire

fraud under Count 1. The government alleged in that count that Samuels

fraudulently obtained insurance on August’s life and then had him murdered,

and offered ample evidence proving as much. The district court thus applied

§ 2B1.1(c)(3) of the Sentencing Guidelines, which provides that where “the

defendant was convicted under a statute proscribing false, fictitious, or

fraudulent statements or representations generally . . . [and] the conduct set

forth in the count of conviction establishes an offense specifically covered by

another guideline in Chapter Two (Offense Conduct), [the court should] apply

that other guideline.” U.S.S.G. § 2B1.1(c)(3) (2010).

The district court then correctly applied § 2A1.1 (First Degree Murder),

the practical effect of which was a twenty-one-step increase in Samuels’s offense

level. His Criminal History Category of IV and offense level of forty-seven

rendered an advisory Guidelines sentencing range of life imprisonment. Absent

§ 2A1.1’s application, and assuming that no further adjustments would have

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applied to Samuels’s offense level, his advisory sentencing range would have

been 92 to 115 months. Nonetheless, the Guidelines portion of his

sentence—that is, the portion not affected by the three mandatory consecutive

sentences imposed under 18 U.S.C. § 844(h)(1)—was limited by statutory

maximum sentences. 18 U.S.C. §§ 371, 1001, 1341, 1343. This part of the overall

sentence amounted to twenty-five years’ imprisonment. See id. §§ 3553(a),

3584(b) (setting out the factors to consider in determining whether sentences

should run concurrently or consecutively). The three mandatory § 844(h)(1)

sentences increased his overall sentence to seventy-five years’ imprisonment.

Relying on dicta in one of our prior cases, Samuels argues that this is a

“case[] where a sentencing fact [(i.e., August’s murder)] is a ‘tail that wags the

dog of the substantive offense,’ and might arguably require a finding beyond a

reasonable doubt.” United States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993)

(quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). We recently

explained that we “ha[ve] never required such a heightened burden” for offense

conduct findings, and our sister circuits have rejected it as well. United States

v. Brooks, 681 F.3d 678, 713 & n.31 (5th Cir. 2012). Accordingly, the district

court did not plainly err in applying the preponderance standard for Guidelines

purposes. See United States v. Setser, 568 F.3d 482, 498 (5th Cir. 2009).

Even if a heightened standard applied, however, we would not reverse

Samuels’s conviction. Remarkably, Samuels contends that August’s homicide

and Samuels’s role in it were “unproven.” Once again, the government alleged

that, in satisfaction of the conspiracy count’s “overt act” requirement, Samuels

agreed to pay Surtain to kill August, and that Surtain fatally shot August on

April 24, 2004. As outlined above, the government offered an overwhelming

amount of evidence establishing that Samuels had August killed to obtain life

insurance proceeds, and certainly enough to satisfy the reasonable doubt

standard for purposes of the conspiracy count and the first-degree murder

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sentencing guideline. U.S.S.G. § 2A1.1; see also 18 U.S.C. § 1111 (“Murder is the

unlawful killing of a human being with malice aforethought. Every murder

perpetrated by any . . . kind of willful, deliberate, malicious, and premeditated

killing . . . is murder in the first degree.”).

III. CONCLUSION

For the foregoing reasons, we VACATE Samuels’s sentences on Counts 12

and 13 of the superseding indictment, REMAND for reversal by the district court

of his conviction on one of these counts (at the government’s election) and

dismissal of that count, and order resentencing on the remaining count. We

deem the judgment of conviction on the remaining count AFFIRMED. In all

other respects, we AFFIRM the district court’s judgment.

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JAMES E. GRAVES, JR., Circuit Judge, concurring in part and dissenting in 

part:

I concur with the majority in all respects except for its affirmance of the

conviction of Charles Moss and Jermaine Surtain on Count 12 for aiding and

abetting the use of fire to commit obstruction of justice.

The jury instruction on Count 12 requires that, to convict, the jury must

find beyond a reasonable doubt that the defendant “knowingly caused the use

of fire to alter, destroy, mutilate, or conceal a record, document, or other object,

or attempted to do so, with the intent to impair the object[’]s integrity or

availability for use in an official proceeding, or otherwise obstruct, influence, or

impede any official proceeding.” The jury instruction then lists the four

elements of a charge of aiding and abetting, which was the charge Moss and

Surtain were facing in relation to Count 12:

For you to find the defendant guilty of this crime, you must be

convinced that the government has proved each of the following

beyond a reasonable doubt:

1. That . . . the offense charged . . . was committed by

some person;

2. That the defendant associated with the criminal

venture;

3. That the defendant purposefully participated in the

criminal venture; and

4. That the defendant sought by action to make that

venture successful.

The jury instruction further explains: “The term ‘to associate with

the criminal venture’ means that the defendant shared the criminal intent of the

principal. This element cannot be established if the defendant had no knowledge

of the principal’s criminal venture.” And “[t]he term ‘to participate in the

criminal venture’ means that the defendant engaged in some affirmative conduct

designed to aid the venture or assisted the principal of the crime.”

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The majority’s opinion is correct that inferences supported by

circumstantial evidence can satisfy the elements of a crime, but those inferences

must be reasonable. United States v. Moreland, 665 F.3d 137, 149 (5th Cir.

2011) (quotation omitted) (“We [] will draw upon only reasonable inferences from

the evidence to support the verdict.”). “Courts cannot credit inferences within

the realm of possibility when those inferences are unreasonable.” Id. (quotation

omitted). Moreover, we “uphold the verdict if, but only if, a rational juror could

have found each element of the offense beyond a reasonable doubt.” Id. at 155

(quotation omitted). “A verdict may not rest on mere suspicion, speculation, or

conjecture, or on an overly attenuated piling of inference on inference.” Id. at

149 (quotation omitted).

With respect to the four elements of the aiding and abetting charge for

Count 12, the first element is easily satisfied. David Samuels along with two

unidentified individuals committed the underlying offense of burning the van to

obstruct justice.

Regarding the second element, “associating with the criminal venture,” a

reasonable jury would have to infer that Moss and Surtain had knowledge of and

shared in Samuels’s criminal intent, and had a motive to burn the van. I agree

that circumstantial evidence supports the inference that Moss and Surtain both

knew about Samuels’s van burning scheme and shared his motive—to destroy

evidence of Treyor Winston August’s murder.1

The third and fourth elements, however, are more troublesome. The third

element requires that Moss and Surtain engaged in some affirmative conduct to

aid or assist Samuels in the burning of the van. The majority, citing United

States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008), properly notes that mere

encouragement is sufficient to “aid or assist.” The fourth element requires that

1

It is immaterial here that Samuels had an additional motive of collecting the

insurance payout for the destroyed van.

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Moss and Surtain sought by action to make the van burning successful. The

content of the phone calls between Moss and Samuels, and Surtain and Samuels

on the day and night of the van fire are unknown. Therefore, to properly find

Moss and Surtain guilty beyond a reasonable doubt on the third and fourth

elements, a jury would have to make two additional inferences: that the three

were discussing the burning of the van during those calls; and that during those

calls, Moss and Surtain aided or encouraged Samuels in setting the van ablaze.

I agree that a reasonable jury, based on circumstantial evidence, could

have made the second inference regarding the likely content of the phone calls. 

Nevertheless, the third inference—that Moss and Surtain aided or encouraged

Samuels—is a prime example of “speculation, [] conjecture, or an overly

attenuated piling of inference on inference.” Moreland, 665 F.3d at 149. This

inference is not tethered to any circumstantial evidence, and is therefore

unreasonable. I cannot accept the majority’s ruling that a rational juror could

have found beyond a reasonable doubt that Surtain and Moss encouraged

Samuels to burn the van during the calls or that Samuels sought Moss’s advice

on how to burn the van since Moss was the so-called go-to man on incendiary

devices. The record is clear that Samuels was the ringleader and organizer of

every criminal scheme. Based on the history of the three’s interactions, it is

indeed more likely that Samuels was instructing Surtain and Moss during those

calls, informing them of his plan to burn the van and what the others should do

next.

Because a reasonable jury could not have found Moss and Surtain guilty

beyond a reasonable doubt on the last two elements of the aiding and abetting

charge, I dissent from the majority’s affirmance of the conviction of Moss and

Surtain on Count 12.

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