United States v. Joseph Fiore

America, Appellee, STATES UNITED FIORE, Defendant-Appellant.

Joseph Docket 86-1399. Appeals,

United States Court

Second Circuit.

Argued Jan.

Decided June

fire, appellant locked the bar between 2:00 only and 2:30 a.m. The two employ- other keys appellant ees with left minutes before in way implicated and are A fire. Poughkeepsie patrolman discovered the 2:35 and blaze between 2:40 a.m. The locked, doors the establishment were closed, windows were and there were no signs entry. of forced Uncontroverted evi- ignited dence established that the fire was points at six different Ap- within the bar. pellant conceded fire was the re- Jacobson, Atty., Asst. U.S. S.D. Elliott B. arson, goods sult of the bar used Giuliani, (Rudolph Atty., U.S. N.Y. W. commerce, shipped interstate and that he Roth, Atty., Asst. U.S. of coun- Kenneth attempt used the mails in an to collect sel), appellee. under the terms of his policy. insurance (Michael Burstein, City New York Judd The only appeal two issues on are the as- counsel), Rose, City, York for de- New insufficiency serted of the evidence and fendant-appellant. multiplicity of the indictment. NEWMAN, MINER and Before Sufficiency MAHONEY, Judges. Circuit determining The rules for sufficiency MAHONEY, Judge: Circuit appeal claims on settled. The well light evidence must be viewed most Defendant-appellant appeals judg- from a verdict; all favorable inferences ment of conviction entered in the United government’s favor; must be drawn for the Southern Dis- States District Court burden; heavy the defendant bears a following jury trict of New York a trial. must be sustained if there is verdict sub maliciously was convicted of de- it; and, support stantial evidence to last fire, stroying, by means of certain build- least, but not the conviction must sus commerce, ings used 18 U.S.C. tained if rational trier of fact could 844(i) (1982 1985) (Counts Supp. Ill have found the essential elements of the Four), through using unlawfully One a reasonable doubt. See beyond crime (mail fraud) a commit 307, Virginia, Jackson v. 99 court, 18 a United States 2781, 2789, (1979); S.Ct. L.Ed.2d 560 Eleven), 844(h)(1) (1982) (Count U.S.C. § Badalamenti, United v. States 794 F.2d his and mail fraud connection with Cir.1986); (2d United States v. Casualty scheme to defraud Transit Com- Grubczak, (2d 793 F.2d 462-63 Cir. pany respect proceeds with to insurance government required Nor is the fire, resulting from the preclude every hypothesis reasonable (Counts Ten). (1982) through Five Chief is consistent innocence. Judge appellant Brieant sentenced to con- Elsbery, States 602 F.2d eighteen prison current month terms on denied, Cir.), cert. Ten, through Counts One and to a consecu- (1979); United States 62 L.Ed.2d 425 year prison one term on Count Eleven. Fiore, (2d Cir.1972) (al holding), Background ternate 36 L.Ed.2d 181 torching of This case arises out of the light appellant’s Wappingers Viewed in the most favorable to the bar and disco Falls, Appel- government, the evidence established the May New York on 1) following: Appellant’s unprofitable Joseph Fiore car salesman in busi- lant was a time of the fire. opened Cymbels Discot- ness in decline at the Poughkeepsie who 2) steps, night Appellant had taken certain initial heque as a sideline. On the morning leasing space, of additional of the blaze. He could including the not iden- change expand indicating tify person person a desire to or state whether the 3) only operations. Appellant, the rele- appellant. 10) his rags Gasoline-soaked person possessing key, left the bar vant were found in a store dump- convenience a.m.1 The fire was between 2:00 and 2:30 ster about three miles from the fire scene 2:35 and 2:40 a.m. It discovered between May Cymbels The landlord of patrolman on first noticed routine Chapter bankruptcy was in proceedings police department The fire patrol in a car. at the time of the fire. a.m. Uncontradict- “alarm time” was 2:41 asserted that the fire expert testimony ed is While the evidence not over began 2:26 and no earlier no later than whelming, hardly is jury’s the verdict irra 4) The doors were locked than 2:21 a.m. tional, and satisfies constitutional stan 5) premises. appellant left the The when jurors dards. The could have found that the doors were locked and windows closed appellant nightclub left the between 2:22 when officers and firemen arrived on the morning fire, and 2:30 on the of the but is, signs scene. That there were no that the fire 2:21. appel started at Since 6) Although appellant entry. forced did admittedly only person lant was the left in appear scene until two hours at the fire 2:21, implications the club at the are clear. began, nobody any smelled after the blaze It extremely unlikely is also that anybody gasoline person or noticed odor on his else building could have entered the unde singed eyebrows. hair or No evidence that appellant departed, tected after since we timing fire a trailer or a the was set with assume, testified, have to appellant as that (which have eliminated device would the the doors were locked the alarm on. gasoline vapors and possibility of burns on The alarm company records indicate no ac arsonist) govern- presented, the was but a morning tivation of the the alarm on of the expert per- the notion disputed ment that a words, government fire. In other the setting appellant’s premises son fire to asserting appellant correct in that had the necessarily singed been have or cov- opportunity sole and exclusive to set the 7) burglar (acti- ered with A alarm fumes. blaze. by bodily vated but unable movement to money losing was on his club fire) working detect order was located on declining. rapidly business was The premises. Appellant the stated that he jury could that rationally conclude Fiore’s company turned it on before he left. The renovation, plans various rather than that monitored the has no record alarm fire, showing a lack to set of motive the being May the alarm on triggered nothing were at the 8) outset or became more burglarized The bar was three weeks smokescreen, deliberately planned than a burglar before the fire and the alarm was jury to establish lack of motive.2 by burglary. activated Thereafter and figure 8,1983, spot- free to believe that the dazed prior May burglar alarm himself, again 9) ted fireman was Fiore error. Dalton activated subscriber nothing or had the fire. Volunteer fireman Kevin Dalton noticed a to do with figure jury dazed fire could also conclude rationally near the scene on the that the interview, evidence, taped 1. In a admitted In into Fiore’s interview with Detective William Holland, fire, morning taped on the Fiore stated that he closed the bar alone be- following exchange place: a.m., took tween 2:00 and about ten 2:30 minutes you building planning on deposition, Holland: Are after the left. last customer his up? evidence, business back appel- which was also admitted into um, planning Fiore: I’d like to. I was lant stated that he closed the bar between 2:00 enlarging it. a.m., prior 2:15 was alone ten minutes Expanding. Holland: closing, people premis- and that the last at the permit Fiore: It’s a matter of I had a record. es before he closed the doorman and the were ah, zoning appeals put an with the board of Joseph DiGregorio bartender. Doorman testi- along boutique arcade in the with a front fied that he left Fiore alone at the bar between about ten or twelve food restaurant ser- fast morning 2:05 and 2:10 on of the fire. vice [sic]. so the fire did without for conduct person who set that violates two provisions. 1) statutory If singed, that Fiore took a the offenses and/or being charged are set forth in between different statutes during period the two-hour shower statute, or in distinct sections of a and each departure from and return club. his unambiguously punish section authorizes trier fact could summary, a rational terms, a violation ment for of its it is setting the appellant guilty found have ordinarily be inferred in doubt, beyond and we a reasonable tended to authorize each under verdict ren- accordingly accept must provision. It must next be determined appellant guilty jury dered sufficiently whether the two offenses are charged. distinguishable from one another that inference that autho intended to Multiplicity multiple rize is a reasonable multiplicitous An indictment is when one. The employed test is alleged offense is in more than one making this determination.3 Under Block Israelski, v. 597 count. United States States, 299, burger United v. 284 52 U.S. 22, (2d Cir.1979). multiplicity 24 F.2d 180, (1932): S.Ct. 76 L.Ed. 306 upon jeopardy doctrine is based the double applicable rule is that where the Amendment, of the Fifth which “as clause same or transaction act a vio- constitutes that the court does not exceed its sur[es] provi- lation of two distinct statutory legislative by imposing authorization multi sions, test applied to be to determine ple for the offense.” punishments same there only whether are two or offenses 165, Ohio, 161, v. 432 97 Brown U.S. S.Ct. one, provision requires is each whether 2225, (1977). 53 L.Ed.2d 187 More proof a fact which of the other not. does over, question punishments of what “[T]he 284 52 U.S. at S.Ct. at If 182. constitutionally permissible is not dif are satisfied, step is the final is to punish question ferent from the of what test the multiple tentative conclusion that Legislative Branch intended to ments punishments are against authorized intended, Congress Where imposed. as legislative history provi of the statutory here, impose multiple punishments, it did contrary sions to discover whether a con imposition of such sentences does not vio gressional intention is If the disclosed. the Constitution.” late Albernaz United legislative history either intent reveals an States, 333, 344, 101 450 U.S. S.Ct. 67 to authorize cumulation of or (1981); 275 L.Ed.2d see also Missouri v. subject, is silent on the the court should Hunter, 368-69, 459 U.S. 103 S.Ct. Congress conclude that intended to autho 673, 679, (1983). 74 L.Ed.2d 535 Marrale, punishments. multiple rize 695 662; Albernaz, F.2d at see also 450 U.S. at Defendant contends that Count 11 336-42, S.Ct. at 101 1141-44. (based 844(h)(1)) on 18 U.S.C. and Counts (based through 844(i)) 1 4 on 18 U.S.C. part Under the three test estab multiplicitous. Albernaz and United Marrale, lished in is Albernaz there Marrale, States problem 658 Cir. multiplicity here. The offenses 1982), 103 set forth in charged are subsec distinct 75 L.Ed.2d 793 establish a and each tions of a statute subsection un step inquiry three ambiguously punishment to determine whether authorizes Moreover, intended multiple pro- to authorize of its terms.4 violation each Where, however, 844(h) legislature clearly provides impris- autho- for a term Section of not less than onment of one nor more ten rizes cumulative than under two stat- conviction, utes, years case of a first not regardless pro- of whether the statutes twenty-five years, nor more than less than five Blockburger, scribe “same” conduct under suspension probationary of sentence or without imposed cumulative can under sentence, subsequent convictions under the statutes in those er, trial. Missouri v. Hunt- 844(i) provides Section for a term subsection. 368-69, 673, 679, 103 S.Ct. imprisonment years, of not more than ten or (1983). L.Ed.2d both; 810,000, more than or if a fine of not explained the need for the Senator Glenn proof of a fact which requires vision Septem- Act the United Senate Blockburger v. United States not. other does 180, 182, 299, 304, States, 1982: ber 844(h)(1) (1932). re- Section L.Ed. virtually H.R. 6454 is identical S. felo- commission proof of the quires April I 2438 which introduced this fraud) may be (in case mail “which ny this involving prop- year clarify that arson States,” the United in a court of affecting or erty used in or required by Section something not of the foreign commerce is a violation 844(i) damaging a requires proof of Section 2438, H.R. Federal law. Like S. commerce, in interstate building involved accomplish objective add- something required Section ing “or fire” to the Federal the words Chaney, 844(h)(1).5 States v. Cf Statute, Title United Explosive States Cir.1977). (7th F.2d 1094 Code, section 844. contends, however, that “an ef- legislation This would enhance the legislative intent shows examination investigations of Federal fectiveness neither envisioned clearly that eliminating prosecutions of arson for consecutive possibility nor endorsed substances, proving necessity of 844(i) (h), sentences, under Sections “explosive gasoline, were in an such focus for this Appellant’s fire.” the same time an arson was commit- state” at the ted____ Anti-Arson Act is the contention law, satisfying Under current 97-298, 96 Stat. Pub.L. quite proof often an this element 1982 amended 18 The Anti-Arson requiring in- onerous task considerable effort____ inserting “fire or” after by U.S.C. § vestigative time and (e), (f) (i), and of” subsections “by means legislation loop- close a This will also inserting “fire or” after “uses” by in the which allows arsonists in hole law (h)(1). of the Act purpose The subsection escape jurisdictions certain to Federal Report in House spelled out clearly prosecutions and convictions. Recent 97-678, in 1982 U.S.Code reprinted No. ninth circuit and court decisions the 2631: Cong. & Admin.News have held that the Federal Ex- elsewhere apply

plosive Statute was not intended to Legislation Purpose of This example, For based on to arson cases. statute, the the interpretation of law, type offenses current arson Under Appeals, in of United States U.S. Court prosecuted by investigated may be (9th Cir.1981), Gere, 662 F.2d 1291 damage only when the Federal officials the conviction for arson under reversed property to the burned or destruction 844(i)in a case in which a Los 18 U.S.C. explosive..... of an by caused means life, 24 others Angeles firefighter lost his 844(e), (f), 18 U.S.C. H.R. 6454 amends damage property to- injured and were that, (i) Federal (h) provide where to By million— approximately talled $1.5 exists, damage or otherwise jurisdiction affecting arsons inter- clarifying that by may also be caused destruction by this stat- commerce are covered state prosecution. The subject of Federal the ute, legislation preclude will further the enumerated jurisdictional circumstances on this inter- decisions based unfortunate section 844 ... of in these subsections of the statute. pretation unchanged. remain otherwise ap general, test is to be the any person personal injury results from to alone, irrespective offense, plied statute of to the imprisonment not more than of $20,- alleged particular indictment. United in a facts twenty years, fine of not more than or a 774, Bradley, Cir. both; F.2d any person States v. results and if death of or Thomas, 1987); therefrom, prison United States term to for extension — -, (2d Cir.1985), term, including imprisonment, or for any life — (1985), L.Ed.2d 54 penalty 106 S.Ct. in accordance imposition the death of (1986). -, L.Ed.2d 34 18 U.S.C. 34§ with S11,985 (daily Sept. ed. the Act Cong.Rec. clearly preexisting overlaid a statu tory by its language framework which own separate penalties established offenses and Hughes explained Representative to the (1) using explosive an to any “commit that: Representatives House of in a court designed to eliminate the This bill is States,” 844(h)(1), of the United significant problem prosecution (2) “maliciously or damagef] or created the limi- Federal arson cases destroy[ building, vehicle, any ... tation in definition the term “ex- or oth ] plosive” in offenses set forth er real or personal property used in inter Explosive Control foreign any state or commerce or activi designed ty affecting broadly foreign The definition interstate or com merce,” to include “explosive” light this, define all situa- U.S.C. explosive tions in an or material it is accept appellant’s difficult to conten capacity explosive was used crimi- tion that “neither envisioned nor nally. endorsed” cumulative for vio problem H.R. 6454 lation of is de- the two subsections when it enact signed is that the to address definition of ed the Anti-Arson Act of 1982.6 interpreted “explosive” has been sev- Nor is this leg- conclusion altered courts, including the eral U.S. Court of islative history Organized XI of the Title Circuit, Appeals for the Ninth to be limit- Crime Control Act of which initially “specific bombing” ed evil of to the 844(h) enacted Section 844. Section was in apply gas- would not case which provision nature of an enhancement liquid oline or a flammable was used to carrying “stringent provisions” over the destroy building. the Gun Control Act of Pub.Law No. necessary to clarify appli- It is now 90-618, explosives H.R.Rep. area. cability of the act. Where the bases for Cong., 91st 2d Sess. 69 jurisdiction Federal exist a case of Cong. U.S.Code p. & Admin.News arson, it should not make difference 844(i), hand, 4007. Section on the other how the fire started. amendment “very was a provision” designed broad by adding makes this clear the term protect “substantially all proper- business “explosive,” “fire” to the term as a ty” “regulate protect and to causing damage means to the al- 70; foreign commerce.” Id. at see also ready property. covered id. at 37-39. not see anything We do H4,957 Cong.Rec. (daily August ed. legislative history rebutting this the normal 1982). multiple punishments conclusion that short, Anti-Arson Act of 1982 activity authorized for which violates both Organized broadened Title XI of Crime 844(h)(1) 844(i). Section and Section Control Act of 84 Stat. 956 use, illegal transportation which concerned Conclusion possession explosives, to include cer judgment tain uses of its of conviction pro fire within ambit of and sen- scribed activities. The new terms tences are added affirmed. hand, Judge concurring opinion Newman’s the other herein, as we have made clear states earlier “legislative history that the punish- [of Anti-Arson where two statutes authorize gives no indication that 1982] satisfy their ment for a violation of terms and contemplated punishments consecutive requires proof because each of a destroys single building fire that in interstate not, fact which the other does cumulation of 844(i) (section commerce and also advances legislative is authorized unless the (section felony 844(h)(1))." some other federal intent, history contrary evidences a as it does true, This statement in the sense that the event, agree Judge not here. we history any specific does not indicate considera- Newman that sentences under sections 1341 and by Congress; respond- tion ing of matter we are 844(h)(1) imposed of Title can consecu- appellant's legis- here to contention that this tively. history contrary lative evidences a intent. On prosecuted in a court of NEWMAN, Judge, con- Circuit O.

JON commits an the United States additional curring: subject to a offense and shall be sentence He com three statutes. Fiore violated predi- to the sentence for the addition fraud, of 18 U.S.C. in violation mail mitted offense. cate arson (1982). He committed § fraud), (mail Cong., felony H.R.Rep. No. 97th 2d Sess. of a federal course 844(h)(1) (1982). Cong. reprinted U.S.C. 1982 U.S.Code & Ad violation building by burning a arson committed He 2633. This clear statement min.News commerce, in violation of in interstate used legislative intent leaves doubt that (1982 844(9 Supp. III & one-year violating term for section decides, my needlessly majority 844(h)(1) properly added to the concur consec view, Congress has authorized eighteen-month violating rent terms for arson punishments for arson and utive v. Mo See United States section felony. As evi course of a federal rale, (2d Cir.1982), made in dence, majority cites remarks section the 1982 amendment to support of validly Once these cu L.Ed.2d 844(i), coverage of broadened the months, thirty sentences totaled mulated only destruc punish not provision Fiore received no additional explosive building by means of an tion of a eighteen-month sentences were im when destruction means device but also 844(i) posed on the section counts to run gives no indi legislative history fire. That concurrently with each other and concur Congress contemplated consecu cation that eighteen-month rently with the concurrent fire that de punishments for fraud sentences the mail counts. building in interstate commerce stroys a reject challenge I Fiore’s 844(i)) oth (section and also advances some solely for these reasons. In all sentence 844(h)(1)). (section All it er federal opin- I respects, other concur the Court’s to make wanted shows is ion. destroyed buildings in those who sure that than by means other interstate commerce “escape Feder

explosive devices would prosecutions and convictions.”

al 22, 1982) S11,985(daily Sept. ed.

Cong.Rec. Glenn).

(Remarks Fiore does of Senator from federal that he is immune

not contend point His is that or conviction.

prosecution cannot receive cumulative he DORMAN, Plaintiff-Appellant, Frank S. sections for one fire that violates both 844(h)(1) right, he is he has or not Whether HIGGINS, Defendant-Appellee. Michael he re- the sentence complaint about

valid No. 912. Docket 85-2326. eighteen Fiore sentenced to ceived. of six mail concurrently on each months Appeals, States Court He received a consecutive fraud counts. Second Circuit. committing arson one-year sentence for 17, 1987. Argued March legisla- the mail fraud. The the course of arson-felony statute history Decided June penalty provides that it makes clear underly- penalty for the in addition to the report of the House Judi-

ing felony. The the 1982

ciary states Committee 844(h)(1) would to section

amendment fire, well uses a

provide that whoever any felony explosive to commit

as an

Case Details

Case Name: United States v. Joseph Fiore

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 9, 1987

Citation: 821 F.2d 127

Docket Number: 627, Docket 86-1399

Court Abbreviation: 2d Cir.