United States v. Patel

Indeed, public daughter cate was a matter of record on file Skwira’s testified that city Northampton with the clerk’s office in press reports when she read the about the and stated that he had died the Leeds investigation, Leeds “it VAMC was like a alia, of, inter “chronic atrial fibrilla- VAMC light off bulb went because I knew that January According tion” on 1996. exactly happened my what had Gazette, Daily Hampshire there were father.” Id. only fourteen heart attack deaths at the primarily Skwira involved a different January Leeds between 1995 and VAMC question than that in this case: whether Yet, February 1996. no one from the me- plaintiffs, fully cognizant giving of facts inquire dia called the Cascones to about rise to suspicions about the death and the death, though even Cascone’s both televi- injury, govern- cause of could wait for the press reporters sion and had covered the investigation ment to finish its filing before story extensively and a num- interviewed (Boudin, an administrative claim. Id. at 85 (at ber of other victims’ families least sev- C.J., concurring). That is not the situation en families were contacted in connection here. Sunday Magazine with Boston Globe alone). article A number of deaths were III. profiled reports, in media but Cascone’s them, April was never one of until 2000. Nancy Cascone did not have a reason- Similarly, no one from families suspect basis to able before November eight brought victims who FTCA Michele any- Cascone died of gather suits contacted the Cascones to in- thing by other than a heart attack caused ' formation about his death. preexisting heart According- ailments. ly, plain-

The facts in were we reverse the dismissal of the fundamentally Skwira Skwira, different. claim against this court affirmed tiffs the United States and the dismissal of an FTCA claim remand the case for further proceedings family patient of a who had died at the opinion. consistent with this ground Leeds VAMC on the that the ad- timely

ministrative claim was not filed. There, F.3d at 80-82. the court relied

primarily on family facts revealed to the

by government investigators. Id. at 80.

Nothing indicated that Skwira had a histo- troubles, ry of heart in- America, UNITED STATES vestigators only had not provoked been Appellee, inquire further long into the cause of death accrual, before the cut-off date for but had PATEL, Defendant, Appellant. Umesh expressly shared the reasons for their suspicions patient’s family, with the asked No. 02-2516. permission body, exhume the Appeals, United States Court of family analysis told the when the revealed First Circuit. the death certificate misstated the Moreover, cause of death. Id. at 68. Heard March 2004. Skwira, plaintiffs had actual knowl- May Decided edge of press reports; relevant and media the case did not charging involve them knowledge. constructive Id. at 81. Brooks,

Douglas S. with whom Thomas Hoopes Kelly, M. Libby Hoopes, & brief, P.C. were on appellant. Brown, William C. with whom Michael J. Sullivan, Attorney, United States was on brief, for appellee. LYNCH, CYR,

Before Judge, Circuit Judge, HOWARD, Senior Circuit Judge. Circuit doubt that beyond a reasonable conclude HOWARD, Judge. Circuit guilt has been estab- the defendant’s Patel was January Umesh On lished. fire to his business setting indicted Santana, United States pro- to collect insurance attempting then Cir.1999)(internal cita quotations May damage. On resulting ceeds for omitted). tions fourteen-day jury tri- following requires proof one count of defendant al, Arson was convicted (2) (1) 844(i), destroyed or maliciously damaged counts of two arson, see 18 U.S.C. (3) building explosive used and one fire or an fraud, see 18 U.S.C. fraud, 18 U.S.C. commerce. See in interstate to commit mail using fire count of Ruiz, 844(i); States v. 844(h)(1). was sen- Patel see 18 U.S.C. (1st Cir.1997). 1492, 1499 government imprisonment: months of

tenced to 7, 2000, that, February prove to on sought and concurrently for run arson months to setting fire to by arson Patel committed to run consecu- and 120 months mail fraud Market, a conven Crossing Corner the fraud.1 to commit mail using fire tively for operated and Patel owned ience store that that argues there Patel appeal, On argues Beverly, Massachusetts. that his of and evidence insufficient of judgment acquit to a that he is entitled Jeopardy the Double violated sentence insufficient evidence was tal because the af-We Fifth Amendment. Clause of (1) intention the fire was set establish that firm. (2) one set he was the who ally and OF THE EVIDENCE SUFFICIENCY the fire. that there was insufficient Patel claims ample introduced The government that he committed arson.

evidence intentionally. set that the fire was evidence evaluating this Fed.R.Crim.P. investigators testified cause” Two “fire claim: set two purposely at that the fire had been the evi- determine must Wayne

[W]e in the store. separate locations favorable dence, light in the most taken analyst,” testi Miller, explosion a “fire perspective government to the that, investigation, on his fied based —a every to draw reasonable us the main floor store began fires credibility con- and to resolve inference and in the beverage coolers base near with the manner consistent in a He fur panels. flicts electrical ment trier of a rational permit “the fire was intentional verdict —would ther testified readily crime[ ] element of flame and open fact find each an ly set Similarly, doubt. Michael beyond a reasonable charged combustible material.” investigator burden certified Hennessy, can meet this a fire government In evi- of Arson Association direct or circumstantial the International by either of the two. National Association dence, by any vestigators combination or concluded, his based on Moreover, Investigators, not dis- Fire need fire was “incen investigation, consistent own every hypothesis prove independent rather, and had two innocence; it in nature diary” the defendant’s first floor origin on the points look jury that a rational could enough further concluded that basement. He objectively proof supportably at the special assessment. super- and a years of to 5 was also sentenced 1. Patel pay restitution and ordered vised release “by Finally, fire was started a human act and an point during investiga- one tion, open changed flame.” opinion “pos- from the sibility of an possi- accidental [fire] Hennessy’s To con- support Miller’s bility of an incendiary suspicion.”2 In clusions, government presented short, while people perhaps reasonable testimony pattern that the fire confirming could have testimony, credited Bennett’s had indicated fires been set we do not sit “as a juror thirteenth who at two locations in the store. In addition may set aside verdict [may] because we affirmatively demonstrating evidence Ruiz, have reached a different result.” fire, intentionally lit the government pre- (internal 105 F.3d at 1502 quotations and testimony ruling possible sented out other omitted). citation fire, accidental causes for the including a malfunction the electrical and mechani- that, argues Patel next even if cal components present building. fire, intentionally someone set inadequate proof that it was he. The jury Patel claims that the was not testimony entitled to believe government presented evidence even Beverly Department investigator, Fire though Patel did not own building the Bennett, Louis the first investigator located, which his store was scene, inspect the testified that the fire $75,000 carried a policy insurance by was a caused malfunction in the com the store’s contents. The pressor that operated beneath the cooler also showed that Patel was in dire above, on the first floor. As indicated financial straits on the date of the fire. other contrary witnesses offered testimo years fire, In prior the to the sales at ny. jury Where the hears conflicting testi decreased, his store had and he was mony, it decides which version to credit. relying, to a large degree, on revenues O’Brien, See United States v. generated by lottery In sales. (1st Cir.1994) (“[A] jury freely can year fire, the lottery before the sales particular testimony choose to credit while accounted for 40% of the store’s net discounting testimony other that arguably fire, prior income. Just direction.”). points in a different There Lottery Massachusetts Commission were several jury reasons that the could lottery had revoked Patel’s license be- have decided not to credit Bennett’s testi cause of repeated his failure to pay First, mony. Bennett testified the Commission. A week before the only “preliminary.” conclusions were Sec fire, the Commission deactivated Pa- ond, he admitted that fully he did not lottery tel’s machines a rep- and sent inspect Third, compressor. there was resentative to Patel’s store to retrieve testimony other that he did not do “a game the instant scratch tickets. On thorough job” investigating the scene. fire, the date of the Patel owed the Fourth, he subsequent stated that infor $40,000. Commission over showing mation compressor may not have been the cause of opened debt, the fire lottery Besides suffering Patel was an beyond “avenue expertise.” [his] level of problems. financial example, For suggests jury compelled investigations Patel was because the critical evidence opinion to believe (fire Bennett's because his in- patterns) by and heat was not affected vestigation investigations occurred before the delay. jury The was free to consider this by Hennessy. government, Miller and The testimony deciding testimony whose however, presented testimony that this time credit. lapse accuracy did not affect the of the later above, $5,500 fire. discussed set the As supplier a Patel pay failed to Patel had an the fire was ample referred to was evidence that debt, had there and this debt been intentionally. Further, There was the evidence for collection. set attorney (1) checks to time bounced Patel was alone at the that Patel had showed evidence fire, month before giving opportunity him an other vendors. several $10,000 (2) crime, fire, had written over he had substan- Patel commit troubles, insufficient were him providing for which there financial checks tial addition, pre-fire In warn- funds. motive. might that there be an electrical fire ings financial difficul- to Patel’s In addition interpreted could have been as in his store evidence ties, government presented cover-up by the crime offer- attempt to Patel was alone began, the fire when for the fire. ing explanation a false Taken Further, days before in the store. a reason- this evidence could lead together, that he fire, people told Patel several jury to conclude that Patel had set able in his the circuit breakers thought fire.3 However, after hazard. a fire store were fire, making such state- he denied rejected a Recently, Eighth Circuit ments. sufficiency challenge. similar Schnapp, States that this evidence

Patel contends Cir.2003), parents owned a the defendant’s him of arson to convict insufficient man store that the defendant convenience establishing was no evidence store, covered which was aged. the fire. It link him and direct between insurance, financial diffi suffering inculpating true that the evidence id. at 567-68. The defendant See culties. Circumstan largely circumstantial. was just the fire before alone the store was from something else evidence “asserts tial that the fire was began and there evidence (i) may either rea the trier of fact which intentionally. See id. at 566-67. set was proposition of the sonably infer the truth sup these facts court concluded that (ii) reasonably infer an increase at least or the evidence the conviction because ported inis proposition probability in the committed that someone had (inter showed Ruiz, at 1500 true.” 105 F.3d fact opportuni “the defendant had that the omitted). A quotations citations nal crime.” Id. at means to commit the ty and entirely on may be verdict based guilty United circumstantial evidence. Scharon, (1st 17, 21 v. 187 F.3d States reached similar Circuit The Seventh Andujar, v. Cir.1999); 49 United States Lundy, 809 v. in United States conclusion v. (1st United States 16, F.3d 20 Lundy, 392 F.2d (1st

Batista-Polanco, 14, 17 Cir. 927 F.2d store, owned a convenience defendant 1991). insurance, that was suffer- by fire covered Prior See id. financially. at 393-94. ing Here, evidence the circumstantial fire, moved several the defendant jury to conclude that for the sufficient building, the evi cess to the outside found argues that have been 3. Patel he should every hypothesis presented exclude guilty evidence "need not because dence after the ñre unknown intruder started a conviction. United to sustain innocence” 612, the base- entering through a hole in the store Scantleberry-Frank, 158 States conflicting evi- Putting Batista-Polanco, wall. aside ment 1998) (quoting Cir. 616 existed on the whether this hole dence on 17). at 927 F.2d provided ac- it date of the fire 114 store, sentencing prescribing greater boxes to the rear of the court from

empty previously punishment legislature had than the practice that the defendant intended.” Hunter, 359, 365, Missouri v. a fire hazard. See id. 394. On U.S. called (1983). fire, the defendant S.Ct. L.Ed.2d 535 the date of Jeopardy for a half hour limited effect of the Double alone store before reported. Investiga- multiple punishment See id. Clause claims de fire was principle power concluded that the fire “was rives from “the tors later define criminal incendiary prescribe pun nature.” Id. The court de- offenses and belongs solely ishments ... to the legisla termined that there was sufficient evidence uphold Handford, the arson conviction ture.” United States v. (7th Cir.1994). result, government presented evidence “of As a if the [the fire, plan legislature impose multiple pun motive to set the decides to defendant’s] ..., offense, his opportunity carry plan, may out the ishments for the same it do States, and evidence that did not so. See Garrett v. [the store] burn 471 U.S. 773, 779, accidentally.” Id. at 396. Similar to S.Ct. 85 L.Ed.2d 764 (1985). Thus, Schnapp Lundy, government pre- determining permissibil ity sented evidence of op- imposing multiple punishments Patel’s motive and portunity, attempted that he one course of conduct cover-up, is a matter of dis cerning legislature’s and that intentionally. fire was set intent. See Alber States, 333, 344, This evidence is sufficient to sustain Pa- naz v. United (1981). tel’s conviction. 101 S.Ct. 67 L.Ed.2d 275 Often, however, this intent will DOUBLE JEOPARDY cases, apparent. not be In such the Block- Patel contends that his sentence for vio burger employed test to determine 844(i) (arson), lating 18 U.S.C. 18 U.S.C. legislature whether the intended to author (mail fraud), § 1341 and 18 U.S.C. multiple punishments. ize See Blockbur (using felony) fire to commit a States, ger v. United U.S. S.Ct. must be vacated because it contains multi (1932); 76 L.Ed. 306 Catala Fonfrias ple punishments for the same offense in States, 423, (1st v. United 951 F.2d 425-26 Clause, violation of Jeopardy the Double Cir.1991). Blockburger, Under “where the Const, U.S. amend. V. Patel claims that same act or transaction constitutes a viola his sentence is unlawful because “once the (or more) tion of two statutory distinct jury guilty found him of arson and mail provisions, applied the test to be to deter fraud all of the elements of the use of fire (or more) mine there are two count were met.” argument This was not only offenses or one is whether provi each raised and below therefore will consid be requires proof sion of an additional fact only ered plain for error. See United which the other does not.” Blockburger, LiCausi, (1st 36, States v. 167 F.3d 46 304, 284 U.S. at 52 It S.Ct. 180. must be Cir.1999) (citing Kayne, United States v. emphasized, however, for multiple 7, 10 Cir.1996)). 90 F.3d claims, punishment Blockburger merely here, As relevant provides Double a statutory default rule of con Jeopardy protects against multiple Clause employed struction and should only be in punishments for the same offense. See the absence a legisla of clear indication of Rivera-Martinez, Rivera-Martinez, United States v. 931 tive intent. See 931 (1st Cir.1991). 148, Clause, Hunter, F.2d 152 367, F.2d at 154 (citing 459 U.S. however, 673). prevent “does no more than 103 S.Ct. concurrently exclusively Block- section run [shall not] relies we argument. in Were

burger framing his any imprisonment. other term of to this reflexively Blockburger apply (emphasis supplied). 18 U.S.C. case, well have some might Patel’s claim plainly provides The statute defen using com Mail fire to merit. fraud uses in the dant who fire commission of a fail Blockburger’s fraud appear mit mail felony punished federal will be cumulative every ele separate offense test because using ly predicate felony using of mail is an for the ment fraud element of and for commit fraud. fire to See Whalen felony. fire to commit that If sup further States, 684, 693-94, 100 United needed, legislative history were port (1980) 1432, (holding 63 L.Ed.2d 715 S.Ct. legislative reinforces intent. rec in the rape “killing and a committed proposed ord states that the makes it law of a are the same offense rape” course an “additional offense” to use fire in con killing Blockburger felony provides with a for “a nection of all elements charge proof in sentence addition to the sentence for the therefore, rape charge H.R.Rep. offense.” No. predicate intent, legislative a contrary absence Sess., Cong., reprinted in 1982 97th 2d punishments are impermissible). (legislative history U.S.S.C.A.N. However, entirely ignored Patel has Act of 97- to the Anti-Arson Pub.L. question reaching for the Block- threshold 298).4 As the text legislative statute’s analysis place, namely, in first burger history express, Congress punish meant to in Congress’ enacting intent what using argu fire This is where his fire to using felony statute. commit and the ment falters. cumulatively.5 Blac predicate felony States, harski v. United F.3d 794- Congress fire using intended the (7th Cir.2000); United States v. Stew those penalty statute enhance for (11th art, committing who use while another fed Shriver, felony pun authorize multiple eral and to States v. United ishments such cases. The statute reads: ... fire ... to commit

Whoever uses explicitly Because authorized Congress felony any may prosecuted which be predicate punishments cumulative shall, court of States ... predi- fire to commit the addition to punishment provided felony, Jeopardy no Double cate there was felony, imprison- such sentenced to be sentencing Patel mail for both violation ... years ment for term of 10 [T]he fraud, to using sub- fraud and fire commit mail imprisonment imposed under this legislative history charged predicate as the arson because 4. The indicates Congress specifically punish “using intended those fire to commit arson” is redun dancy Congress who use fire commit insurance fraud. See for did not intend which (“Fire only extensively punishments. id. at 2632 is used See Unit authorize cumulative extortion, 1094, (7th purposes for the of terror- Chaney, criminal v. 559 F.2d 1096 ed States Cir.1977) revenge, ism and but to conceal other crimes (holding that arson cannot be the against such as homicide and for fraud insur- using predicate felony purposes fire for companies.”). ance always requires use because arson statute using Congress did not intend the of fire is, however, every penalty important exception. fire statute increase for 5. There committed). at cannot be arson See 116-117. Arson infra 116 (U.S. 22, 2004);

even though these constitute the “same 316514 Mar. United States Shriver, Gardner, (7th 1049, offense” under v. Blockburger. See 211 F.3d 1056-57 982; States, Cir.2000); F.2d at Zendeli, 838 Musone v. United United States v. 180 255, (D.R.I.2000), (7th F.Supp.2d aff'd, 879, 113 261 Cir.1999); F.3d 886 United States (1st Cir.2001). Fed.Appx. 14 (5th Nguyen, Cir.1994); 28 F.3d claims he is nevertheless entitled to Karlic, United States v. F.2d (9th relief also convicted of Fiore, United States v. arson. (2d Cir.1987). 127, 130-31 claim, In support of his Patel relies on

Neither the text nor legisla Corona, United States v. 108 F.3d history using tive fire statute re (5th Cir.1997). Corona, however, 573-75 veals Congress ap intended it to distinguishable. Corona, is the defen- ply where the charged defendant is also arson, dants However, conspiracy were convicted of with arson. there is no Double arson, to commit using fire to commit Jeopardy imposing multiple punish bar to conspiracy to for commit arson. id. at using ments arson and fire to commit conspiracy mail fraud 571. The overt act for the because these are of setting the Blockburger. requires underlying fenses under Arson fire the arson count. proof defendant, that, that a at through the use of See id. 573. The court held consis- fire, damaged ... building “a used in in tent with Double Jeopardy principles, cu- 844(i). terstate punishments commerce.” 18 U.S.C. mulative could im- not be Using posed fire to commit mail requires fraud because the essence of each of the proof same, that the defendant used the three counts mails to was the i.e. arson. See further a support, scheme to defraud. id. For See 18 court relied on Cha- Thus, U.S.C. requires proof ney, arson which had held that arson could not damaged building, be predicate felony which is not for a conviction fire an element of using using fire to commit mail under the fire statute because arson fraud. using “using And fire to commit mail to commit arson” are the requires fraud proof (every “same requires the defendant offense” arson fire), used the mails to use of Congress scheme to did not intend further defraud, which is not an element of arson. fire statute to enhance pun- Therefore, 573; the addition of the arson con ishment for all arsons. See id. viction does not make resulting supra at n. 5. The Corona court deter- impermissible sentence an pun mined furthering cumulative where the act ishment because punishments conspiracy were im arson setting is the fire under- posed arson, lying different offenses.6 charging See United conspiracy as the Smith, States v. predicate felony just way another — Cir.2003), denied, U.S. -, cert. charging predicate felony.7 arson as the S.Ct. 158 L.Ed.2d 2004 WL See id. The court declined to countenance 6. For similar ing charge, reasons arson is not same possible the arson it could be fraud; offense as arson the set- conspiracy predicate to serve as the fire, ting a of while mail fraud the felony using for the fire statute. id. at See Therefore, use the of mails to defraud. cumu- By way example, sug- 573-74. of the court punishments lative for arson and mail fraud gested that if the defendants had set a fire to permissible. are also signal communicate via smoke about the ar- conspiracy, Jeopardy problem son the Double that, recognized 7. The Corona court if the could be obviated. See id. furthering conspiracy overt act the to commit setting arson was not underly- the of the fire analy- Blockburger if of this mode Even hand” to of “sleight prosecutorial this case, likely it appropriate sis were conviction using a fire that the rule avoid using the Patel assist not would un- as the on arson predicated cannot be to government the required offense fire felony. Id. derlying not encom- element an additional prove using the felony for Here, predicate the arson of combining the elements by passed (as in fraud, arson not mail is fire offense required proof fraud. Arson and mail arson to conspiracy commit or Chaney) mail fraud building; fire to a Patel set Corona). using (as purpose to the mails Patel used required proof that for penalties to enhance fire statute defraud; using to a scheme further may involve but require not that do crimes proof that felony required fire to commit a exactly the situa That is fire. use of the mail fraud. to commit used fire that is fraud is here. Mail tion the conviction Thus, use of fire gain to the fire; using without completed typically jury of an the to convince had government determined however, has Congress for either required not element additional to commit uses fire the defendant where ar- Patel committed or mail fraud: arson committed fraud, has defendant mail fraud. In the mail to commit son in order Thus, unlike Coro serious offense. more mail commit words, using fire to through na, government, in which connect to government required fraud contrary to con pleading” “creative statutory mail fraud. The to the arson employ the intent, sought gressional can be mail fraud of arson elements punish to enhance using fire statute without single prosecution in a met gov arson, F.3d at for ment crimes. connecting the two violating the Patel with charged ernment fraud mail Therefore, using fire to commit way Congress using fire statute it a makes element which an additional has punish provide additional intended —to of the combination from separate offense aof in the commission fire using for ment fraud.8 arson and an is not use of fire felony which sur has some argument Smith, 354 See the offense. of element case government’s appeal because face on (distinguishing Corona at 399-400 F.3d con course of from one against him arose basis). a similar presented the facts therefore duct differences fraud were dispositive and mail Despite the Patel of arson convict case, Patel seizes presented and this establish facts between Corona the same However, general we court’s statement fire violation. using the Corona analysis statutory Blockburger more than two conduct ly do not “where are at case issue, must con facts of the considering offense each at provisions Lanoue, 137 v. in the sum States not contained hand. See an element tain Cir.1998) (citing United the other F.3d of offenses” the elements of Dixon, interesting 572, make an States (1993)). As L.Ed.2d fire convic using S.Ct. argument novel “[d]etermining stated, essence, claims court the Corona duplicative. tion is statutory offenses are mail fraud whether of the elements combining involves purposes jeopardy double elements all of the satisfies and arson the facts from apart the statutes parsing offense. supr conviction. of fire quired for a use that a conviction earlier 8. We have noted a at 116. re- requires proof of element any particular case.” 108 F.3d at 572. Supreme ed States argument Court. His using Because the statute is that when the elements of the arson proof of an element in addition to those conviction and the elements of the mail required prove fraud fraud conviction together are combined (i.e., the arson fire was set the defen and then compared with the elements of fraud), dant to commit the mail Patel’s 844(h)(1) § conviction, the Blockburger argument arguably fails. test is not met. Blockburger v. United Cf. States, 299, 304, 52 S.Ct. event, any conclusively we need not (1932). L.Ed. 306 legal juncture resolve these issues at this since Patel did not them in raise the dis- For each of the arson and mail fraud trict court. merit Whatever Patel’s “com- convictions Patel received concurrent 84 have, bination” argument may the emer- (seven year) month sentences with manda- gent law concerning “combination” double tory special assessments. It con- jeopardy claims was neither “clear” nor viction for fire to commit a felony “obvious” and therefore Patel cannot es- 844(h)(1) § that added another ten plain tablish error. See United States v. years then, Necessarily sentence. Marino, there is a prong second argu- to Patel’s Accordingly, the sentence that the district ment: the Double Jeopardy Clause court imposed does not constitute revers- having violated, been the case should be ible error. where, remanded to the district court court, argues, it is the and not prosecu- CONCLUSION tor, which should have the choice as to For above, the reasons set forth we which of duplicative convictions to va- affirm the conviction and sentence. cate. Because the district court judge con- sidered this case extreme example of LYNCH, Judge, Circuit in (concurring overcharging by pro- part concurring judgment). duced a sentence that inherently un- join I analysis majority excessive, fair and fairly it is clear that the rejecting Patel’s claim that the evidence district court would choose to vacate the was insufficient to convict. As to the dou- 844(h)(1) § conviction. claim, jeopardy join ble I judgment. Because claim below, this was not raised On question the threshold —whether only our review is plain error. any there is jeopardy double violation—we ask first whether there are indications that

Patel must concede that if the mail fraud intended, Congress § 844(h)(1), via conviction is to add compared one-on-one with the 844(h)(1) a ten-year § sentence where U.S.C. someone has (using fire to commit conviction, been convicted felony) of arson and then convicted of a there is no dou- jeopardy ble different issue forms the Congress underlying in- basis for tended an enhanced sentence. He conviction. Hunter, must 359, 368-69, concede that if Missouri v. his arson conviction U.S. (1983). alone is compared 103 S.Ct. one-on-one with the L.Ed.2d 535 As 844(h)(1) conviction, notes, majority then there is no no legislative jeopardy double problem history on point, because the ele- say one cannot However, ments are different. with certainty Congress did or did not claim raises an interesting issue not ten-year ad- intend to add a sentence in these directly by dressed this court or the Unit- combination circumstances. way in the comport with may not But it Blockburger test. to the revert

thenWe out the to supposed only two are to we usually applied which test is That Blockburger the of elements offense of an offenses, compare the elements to Here, the other. guidance of elements not have direct the do one with purposes. We Blockburger ain engage us to ap- asks to on how Court Supreme the from no I see offenses. of three comparison claim. of combination type this proach test— why proposed theory in reason to the connect did have government The element an contain must each offense that in mail fraud arson fire in the use of of of the elements in sum the contained not under a conviction gain to order apply. not other offenses—should the suggests 844(h)(1). sense But common § 565, 572 Corona, 108 F.3d v. States ele- the proved once the that v. (5th also United States see (using fire to charge arson of the ments Cir.1986). Davis, of elements and the building) a down burn involving a Block- only case is the Corona (which in case this charge the mail fraud of ele- of combination comparison burger to tied fraud scheme an insurance involved B, with A offense ments, and offense from involved building very in the very fire the that uses C an offense of elements the be- the connection charge), the arson in felony predi- underlying B as its offense already made charges was the two tween out, correctly points majority cate. As the the of the elements all of thus and dif- the based on distinguishable is Corona 844(h)(1) already proven.9 were § offense But charged in case. crimes ferent is by Patel raised claim the “combination” noted Corona, Higginbotham Judge merit. obviously without not an of- case that, where in a combination lies Patel’s of claim appeal intuitive the underlying felony B also the is fense to used “fire” was the same fact that in the 844(i) § 844(h)(1) offense, overlay of the § the arson offense the both prove a dou- 844(h)(1) result § could well to used 844(h)(1) If the fire offense. § impossible it were if violation jeopardy ble from different had been the prove (of- 844(h)(1) felony underlying § underlying perpetrate to fire used B) accomplished different fense be conviction, 844(h)(1) then § accomplish used to “fire” “fire” from ma- different. would be the situation because, hypothetically, But the arson. assuming that even jority reasons involved, the be fires could two different con- must offense Blockburger each elements concluded court Corona in the sum contained not tain element 844(h)(1) neces- 844(i) § were not §of offenses, two of the the elements approach one Under sarily the same. likely fails be- most still argument Patel’s there: end analysis would Blockburger, 844(h)(1) require does offense § cause in- be fires could different because two not con- element additional of an proof 844(h)(1) 844(i) § of- § volved of arson elements in the sum tained in- is same fenses, fact used that Patel namely, mail fraud: case in particular offenses volved both fraud. the mail to commit fire in order Corona declined irrelevant. would be claim combination response That analyz- approach to a technical follow such entirely sensible. is fire in statute, the term "uses” mined U.S.C. Although the arson Unit "by of” fire. means equivalent phrase employ 844(i), literally does Ruiz, 1503-04 “by ed States fire,” phrase employ the it does “uses deter- court has And fire.” means of 120

ing the elements of offenses Block- The majority’s under reasoning may be cor- burger, “[tjhere citing to the rule that may rect, I am but uncomfortable endorsing it be instances in which Congress has not any certainty. Nevertheless, one intended punishments ..., cumulative not thing that is certain is that there was no withstanding the fact that each offense “plain” error here. requires proof of an element that the other Going beyond even if Patel were Corona, does not.” (quot 108 F.3d at 574 argument, correct his first it is not at ing States, Whalen v. 684, United all clear that it would do Patel much good. 7, 1432, 693 n. 100 S.Ct. 63 L.Ed.2d 715 As to the second of arguments, (1980)). Instead, the Corona court held law, the case choice which of two that jeopardy double was violated because convictions to vacate where those convic

there was no that evidence the defendants carry tions non-concurrent ap sentences had actually used different carry pears to belong government, not the 844(h)(1) § out the underlying felony from court. district See United States v. Wal the fire perpetrate used to the arson. ters, (5th 351 F.3d Cir.2003); Co opinion majority suggests that sort rona, 574-75; 108 F.3d at United States v. of fact-based consideration of the offenses Graham, (8th Cir.1995). 60 F.3d in a Blockburger analysis is inappropriate. Although there is law from some other This court has said that under Blockburger circuits which leaves the choice of which one looks to the elements of each offense conviction to vacate to the district court rather than to the evidence used to prove where two convictions resulted in concur each Lanoue, element. United States v. sentences, see, rent e.g., United States v. (1st 137 F.3d But even Hebeka, that rule preclude, does not in some Thomas, States v. 810 F.2d stances, looking the facts underlying the (5th Cir.1987), 479-80 that situation is ob all, convictions. After it is also our rule viously different. It is impossible, if if a conspiracy “actually offense is given choice, government used to establish the ‘continuing series of might revisit its charging decision in this violations’ and ‘in requirements concert’ case, which has led to a seventeen-year needed to show an enterprise under 21 sentence for a first-time offender who is 848,” § U.S.C. then double jeopardy bars the father of young three children. But punishment. Stratton v. United far, thus has States, withstood Cir.1988) (per district curiam). judge’s that it entreaties reconsid Further, when a statute refer er given and has not offenses, any ences several indication it will as change does, its view. If (and with a the choice belongs term “felony” as broad as prosecutor, thus if does not set even Patel pre forth were to language combining vail hew on his first argument, elements with those specific victory underlying offenses), likely would most may pyrrhic. there be be some role for the in determining facts a Blockburger violation. Whal Cf. en, 708-12, 445 U.S. at 100 S.Ct. 1432 J.,

(Rehnquist, dissenting) (suggesting

the Blockburger may test be misdirected applied

when to statutes defining com

pound offenses). predicate law

this area is not marked clarity.

Case Details

Case Name: United States v. Patel

Court Name: Court of Appeals for the First Circuit

Date Published: May 27, 2004

Citation: 370 F.3d 108

Docket Number: 02-2516

Court Abbreviation: 1st Cir.