United States v. Smith

United States Court of Appeals
Fifth Circuit
F I L E D
December 17, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-31170
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ELIZABETH BOYETT SMITH,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 01-CR-348-1-N
_________________________
Before SMITH, BARKSDALE, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
A jury found Elizabeth Smith guilty of ar-
son, mail fraud, conspiracy, witness tampering,
and the use of fire in the commission of a
felony. She raises five claims of trial error and
contends that the district court misapplied the
sentencing guidelines and that part of her
sentence violates the double jeopardy clause of
the Fifth Amendment. Finding only harmless
error with respect to one evidentiary issue, we
affirm.
I.
The underlying facts have their origin in a
scene familiar to many households: A mother
asks her son to perform a simple chore, he re-
fuses, and she ends up having to hire one of
the kids from the neighborhood to do the job

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2
instead. Although ordinarily this would not
land anyone in federal prison, it is also not the
typical mother who would ask her son to set
fire to a motel. Smith did just that. Motivated
by a desire to collect on a $325,000 insurance
policy, she asked her son, Johnathon Williams,
to set fire to a motel she owned. When he
refused, Smith turned to Josh Booty, a family
friend, and offered to buy him a truck if he
would burn down the motel.
Acting under Smith’s direction, Booty bor-
rowed a truck from Williams’s roommate, An-
thony Turnley, and drove to the motel, where
he used a set of keys given to him by Smith to
enter the unoccupied motel, spread gasoline in
several of its bedrooms, and set them (and
nearly himself) on fire. Though damaged by
the fire, the motel was not completely de-
stroyed. Smith, meanwhile, created an alibi for
herself by driving to another city with her
husband, Spencer Smith. She later made state-
ments to the FBI, the insurance company, and
the grand jury accusing, among others, the fire
chief, mayor, and former police chief of setting
the fire.
It did not take long for these well-laid plans
to go up in smoke. When Booty returned the
truck to Turnley that night, he was carrying a
revolver, his eyebrows were singed, and he
“reeked like a barn fire.” Startled by Booty’s
appearance, Turnley asked Booty what he had
used the truck for, and was told about the fire
and Smith’s role in planning it.
The next day, after Turnley found the gas
cans Booty had left in the bed of his truck,
Turnley’s father called the fire department and
turned over the cans as evidence. That started
an investigation in which Turnley and Booty
cooperated with the Bureau of Alcohol, To-
bacco and Firearms (“ATF”) by tape recording
numerous conversations between themselves
and Smith in which she acknowledged her role
in the conspiracy and cover-up. The govern-
ment prosecuted Smith on the basis of those
tapes and the testimony of Booty, Turnley, and
Spencer Smith. A jury returned a verdict of
guilty on all seven counts.1
II.
Smith claims a new trial is warranted by the
jury’s potential exposure to extrinsic evidence.
At the beginning of the trial, the government
provided jurors with a binder containing tran-
scripts of the surveillance tapes it planned to
introduce into evidence. One of those tran-
scripts, detailing a statement Williams made to
the ATF, was for a tape that the government
did not introduce into evidence. During its
deliberations, however, the jury sent a note to
the court asking to see a copy of “Johnathon’s
Statement to ATF,” indicating it at least was
aware of the existence of the extrinsic evi-
dence.
The court refused the request, explaining
that the tape was not evidence that could be
used in deliberations. At no time did the
transcript enter the jury room. On this basis,
Smith argues that the verdict is tainted by an
exposure to improper evidence and that the
district court abused its discretion in denying
her motion for a new trial without questioning
the jurors on their exposure to the transcript.
1 The seven counts are (1) conspiracy to commit
arson and mail fraud, in violation of 18 U.S.C. §
371; (2) arson, in violation of 18 U.S.C. § 844(i);
(3) mail fraud, in violation of 18 U.S.C. § 1341;
(4) use of fire to commit a felony, in violation of 18
U.S.C. § 844(h); and (5)-(7) three counts of
witness tampering, in violation of 18 U.S.C.
1512(b).

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3
We review only for abuse of discretion a
court’s handling of complaints of outside in-
fluence on the jury. United States v. Sylvester,
143 F.3d 923, 931 (5th Cir. 1998). “In grant-
ing a broad discretion to the trial judge, we
acknowledge and underscore the obvious, that
the trial judge is in the best position to evalu-
ate accurately the potential impact of the com-
plained-of outside influence.” United States v.
Ramos, 71 F.3d 1150, 1153-54 (5th Cir.1995).
The initial presumption that the jury is impar-
tial can be overcome by evidence that an
extrinsic factual matter affected deliberations.
United States v. Kelley, 140 F.3d 596, 608
(5th Cir. 1998).
The district court did not err in denying
Smith’s motion without first questioning the
jurors on their exposure to the transcript. A
district court is not required to conduct a
“full-blown evidentiary hearing in every in-
stance in which an outside influence is brought
to bear upon a petit jury.” Ramos, 71 F.3d at
1153. Rather, the court “must balance the
probable harm resulting from the emphasis
such action would place upon the misconduct
and the disruption involved in conducting a
hearing against the likely extent and gravity of
the prejudice generated by the misconduct.”
Id.; United States v. Bernard, 299 F.3d 467,
476-77 (5th Cir. 2002), cert. denied, 123 S.
Ct. 2572, and cert. denied, 123 S. Ct. 2572
(2003). The court is not required to conduct
an investigation into claims of exposure that
are merely speculative. Kelley, 140 F.3d at
608.
There is scant evidence that the jury was
exposed to the contents of the transcript. The
jury was aware at least of the existence of the
transcript; otherwise, it could not have known
specifically to request a copy of “Johnathon’s
Statement to ATF.” This much, however, is
explained by the fact that the transcripts in the
jurors’ binders were separated and identified
by tabs, one of which was visibly labeled
“Johnathon’s Statement 2.” Moreover, on
multiple occasions, trial testimony refers to the
fact that Williams spoke with ATF agents. As
a result, the mere fact that the jury was aware
of the existence of the transcript does not
prove that any individual juror read, or was
exposed to, the contents of the transcript.
In addition, there is no reason to believe
that the jury had meaningful exposure to the
evidence contained in the transcript. In deny-
ing a new trial, the court detailed the proce-
dures it had used to limit the jury’s access to
the transcripts:
The jury was never afforded the opportu-
nity to turn to that transcription . . . and
read only the transcript of the statements
which were contemporaneously played into
evidence, and through the earphones pro-
vided each juror. The jurors were instruct-
ed to pick up their books at the beginning
of a recording, to turn to the appropriately
tabbed transcript and to read along. At the
end of each recording, the jurors placed
their books of transcripts down beside their
seats as instructed at the outset, and turned
their attention to evidence emanating from
the witness stand.
Smith does not dispute these facts and instead
suggests only one possible opportunity by
which a juror could have seen and read Wil-
liams’s statement. This is mere speculation
that does not trigger the requirement of a
broader investigation.2 Id.
2 Needless to say, the government’s practice of
handing out intended exhibits en masse before in-
(continued...)

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4
Because Smith has shown that the jurors
were at least minimally exposed to the tran-
script, inasmuch as they knew the statement
was in their binders, we must consider whether
that exposure had a prejudicial effect on the
verdict. Smith argues that it is the govern-
ment’s burden to prove that the exposure was
harmless. Although this was once the law of
the circuit, see, e.g., United States v. Luffred,
911 F.2d 1011, 1014 (5th Cir. 1990), it is no
longer the case that any intrusion on the jury,
no matter how slight, creates a rebuttable pre-
sumption of prejudice to the defendant. In
Sylvester, 143 F.3d at 932-34, we recognized
that Smith v. Phillips, 455 U.S. 209 (1982),
and United States v. Olano, 507 U.S. 725
(1993), undermined the presumption of pre-
judice.3 Consistent with our longstanding rule
that a district court is entitled to discretion in
investigating and resolving charges of jury
tampering, we held in Sylvester, 143 F.3d at
934, that “only when the court determines that
prejudice is likely should the government be
required to prove its absence.”
To exercise this discretion properly, a dis-
trict court must examine the complained-of in-
trusion on the jury and determine whether it is
of a nature and degree that is likely to have a
prejudicial effect. In some cases, the intrusion
will be as serious as that in Remmer v. United
States, 347 U.S. 227 (1954), in which the
Court held that an attempt to bribe a jury fore-
man was presumptively prejudicial to the de-
fendant. At the other end of the spectrum are
cases like the present one, in which the defen-
dant can do no more than show that the jury
improperly learned of the existence of a tran-
script, but nothing of its contents. Given such
a de minimis intrusion on the jury, it is not an
abuse of discretion for the district court to re-
quire some evidence of a prejudicial effect be-
fore burdening the government with a require-
ment that it prove the intrusion harmless.
The district court did not abuse its discre-
tion in finding that Smith was unable to make
a colorable showing of prejudice. Unlike the
situation in Luffred, 911 F.2d at 1015, on
which Smith heavily relies, the transcript of
Williams’s statement did not make it into the
jury room and could not have been referenced
during deliberations. In addition, the evidence
in Williams’s statement was largely cumulative
of testimony that was properly before the
jury.4 Smith is not entitled to a new trial on
this ground.
III.
Smith raises two challenges to the evidence.
She argues first that the district court commit-
ted reversible error by overruling an objection
to the government’s cross-examination of
Spencer Smith. We review evidentiary rulings
for abuse of discretion. United States v.
Sprick, 233 F.3d 845, 852 (5th Cir. 2000).
Even if we find error, rulings are subject to the
harmless error balancing test. United States v.
Parker, 133 F.3d 322, 328 n.3 (5th Cir. 1998);
United States v. Pace, 10 F.3d 1106, 1116
(5th Cir. 1993).
2(...continued)
troducing them into evidence is risky.
3 One court of appeals has reached the same
conclusion. See United States v. Williams-Davis,
90 F.3d 490, 496-97 (D.C. Cir. 1996); but see
United States v. Dutkel, 192 F.3d 893, 896 (9th
Cir. 1999).
4 Williams’s statement was relevant only to cor-
roborate Booty’s claim that the fires were set at
Smith’s behest, and this was sufficiently done by
Williams’s confirmation, in a separate audiotape
and transcript admitted into evidence, that Smith
had first asked him to set the fires.

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5
During cross-examination, the govern-
ment’s attorney asked Spencer Smith: “Are
you aware that two weeks ago, your wife
called Keisha and Meredith [and] asked if they
would testify today that Josh Booty was at
Kristenwood on January 23rd, as late as 8:00
o’clock?” Spencer Smith responded: “Yes.”
Because the question was asked in this form,
it was impossible for the jury to determine
whether Spencer Smith was testifying solely
that the phone call occurred, or whether he al-
so was confirming the government’s allegation
that the purpose of the call was to affect
testimony. The defendant properly objected
on the ground that this compound question as-
sumed facts not in evidence, and the objection
should have been sustained.5
Nevertheless, the error was made harmless
by subsequent questioning. Spencer Smith in-
dicated in response to one question that he
was aware his wife had made the calls, and in
response to another that he thought she was
merely “trying to get some answers.”6 The
error is also rendered harmless beyond a rea-
sonable doubt by the overwhelming evidence
of defendant’s complicity in the arson, conspir-
acy, and subsequent cover-up. Much of the
evidence comes in the form of her own tape-
recorded statements and therefore is highly
reliable.7
Smith’s remaining evidentiary issue is also
without merit. She contends that one of the
government’s experts offered an opinion that
exceeded the pre-trial disclosure mandated by
FED. R. CRIM. P. 16(a)(1)(G) and that the dis-
trict court should have remedied this violation
by striking the offending testimony. A district
court’s remedies for alleged discovery
violations are reviewed for abuse of discretion.
United States v. Katz, 178 F.3d 368, 369 (5th
Cir. 1999).
The expert, ATF agent Daniel Hebert, tes-
tified that it was more likely that several plastic
water jugs discovered near the motel had been
5 One prominent treatise explains the rule
against asking questions that assume facts not in
evidence: “A common vice is for the examiner to
couch [a] question so that it assumes as true mat-
ters to which the witness has not testified, and
which are disputed between the parties . . . .
[W]hether the witness is friendly or hostile, the
answer can be misleading. If the witness answers
the question without separating out the assumption,
it is impossible to determine whether the
assumption was ignored or affirmed.” MCCOR-
MICK ON EVIDENCE § 7 (5th ed. 1999).
6 Smith mistakenly asserts that the improper
questioning denied her the right to cross-examine a
person with personal knowledge of the contents of
the phone call, and thus rises to the level of a
constitutional violation. This contention is erron-
(continued...)
6(...continued)
eous, for Smith’s solicitation of perjury is itself a
verbal act, not hearsay. See, e.g., United States v.
Villareal, 764 F.2d 1048, 1050 n.2 (5th Cir.
1985); Morgan v. State, 741 So. 2d 246, 257
(Miss. 1999). Spencer Smith’s testimony was,
therefore, competent evidence.
7 At oral argument, Smith argued for the first
time that this question also improperly introduced
evidence of a prior bad act of the defendant, in vio-
lation of FED R. EVID. 404(b). Because Smith did
not object on this basis at trial, our review is only
for plain error. United States v. Duffaut, 314 F.3d
203, 209 (5th Cir. 2002); FED. R. EVID. 103(d).
Insofar as the question focuses on Smith’s attempts
further to cover up the crime, the district court
would not have plainly erred in concluding that the
question sought evidence relating to the pending
conspiracy charge and not to a prior bad act.

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6
planted as evidence than used in the arson,
because they were in too good a condition to
have been sitting outside during the three
months before their discovery. The jugs also
still smelled faintly of gasoline, which Hebert
testified was unlikely to be the case if they had
last contained gasoline at the time of the arson.
This evidence was relevant to prove
Smith’s role in the conspiracy. In April 2001,
she contacted Hebert, claiming to have
“discovered” the jugs in the grass behind the
motel. She did not realize, at that time, that
the ATF had already tape recorded numerous
conversations in which she castigated Booty
for leaving the gas cans used in the arson in
Turnley’s truck. In those tapes, Smith blamed
herself for not telling Booty to throw the cans
into the swamp. The government argued that
she planted the water jugs at the scene, in-
criminating herself in the conspiracy.
Characterizing Hebert’s testimony as an ex-
pert opinion on gasoline dissipation rates, de-
fense counsel objected and asked that the
testimony be struck. Rather than grant that
request, the court interrupted the examination
of Hebert to permit a voir dire inquiry into the
basis of the witness’s opinion. This eliminated
the risk of surprise and allowed defense coun-
sel to obtain Hebert’s admission that he could
not say, with any specificity, when the gas cans
were placed at the scene. The district court’s
remedy therefore was no abuse of discretion.8
IV.
Smith challenges the district court’s
conclusion that the motel is a “dwelling”
within the meaning of U.S.S.G. §
2K1.4(a)(1)(B). She apparently concedes that
the motel would be a dwelling while occupied,
but argues that it ceased to be a dwelling
during the three-month seasonal vacancy
during which the arson took place. An
interpretation of the sentencing guidelines is a
question of law that we review de novo.
United States v. Sanders, 343 F.3d 511, 520
(5th Cir. 2003).
In a matter of first impression in this circuit,
we agree with the government and several of
our sister circuits that a hotel room counts as
a “dwelling” within the meaning of §
2K1.4(a)(1)(B), regardless of whether it is
occupied at the time of the crime.9 Black’s
Law Dictionary defines a dwelling in
connection with the crime of arson as, in
relevant part, “an enclosed space, permanent
or temporary, in which human beings usually
stay, lodge, or reside.”10 A motel room easily
fits this definition.
The only question, therefore, is whether the
nature of the motel as a dwelling changed dur-
ing its three-month seasonal vacancy. Smith,
8 Two other issues raised by Smith are merit-
less. Contrary to her claims, the government did
not misstate the evidence in its closing argument.
In addition, insofar as we have found Smith’s other
allegations of error to be lacking, she was not
prejudiced by an accumulation of harmless errors.
9 See United States v. Ray, 245 F.3d 1256,
1257 (11th Cir. 2001); United States v. McClen-
ton, 53 F.3d 584, 587 (3d Cir. 1995); see also
United States v. Barker, 208 F.3d 215 (table),
2000 U.S. App. LEXIS 3666, at *5-*7 (6th Cir.
Mar. 7, 2000) (unpublished) (holding that it was
not plain error to conclude that an occupied motel
is a dwelling for purposes of the sentencing guide-
lines).
10 See BLACK’S LAW DICTIONARY 524 (7th ed.
1999) (quoting 5 AM. JUR. 2D Arson and Related
Offenses § 13, at 789 (1995)).

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7
relying on United States v. Jackson, 22 F.3d
583 (5th Cir. 1994), argues that § 2K1.4(a)-
(1)(B) should not apply here, because Booty
knew the motel was unoccupied and that the
arson posed correspondingly little risk of dan-
ger to an inhabitant. In Jackson, we refused to
apply a portion of the sentencing guidelines
that defines burglary of a dwelling as a “crime
of violence,” on the ground that the burglary
took place in a building that had been vacant
for seven years. “Logically, whether by
vacancy, physical deterioration, altered use, or
otherwise, a point in time exists at which a
dwelling loses its character as a residence and
becomes a ‘mere’ building.” Jackson, 22 F.3d
at 585.
There is, however, a marked difference be-
tween the seven-year abandonment of the
building in Jackson and the three-month
seasonal vacancy of the motel. Whatever the
“point in time” at which a building’s core na-
ture is altered, it was not reached in just three
months, particularly in light of the fact that the
motel would again be occupied by visitors in
the near future. Moreover, unlike the
circumstance in Jackson, our interpretation of
“dwelling” in § 2K1.4(a)(1)(B) does not re-
quire us to find that the arson posed a
substantial risk of death or serious bodily
injury to another.11 Rather, the guideline may
be applied either if there is a risk of serious
injury or if the arson involved the destruction
of a dwelling. Accordingly, the district court
did not err in concluding that the motel was a
dwelling within the meaning of § 2K1.4(a)-
(1)(B).
V.
Smith contends her sentence violates the
double jeopardy clause of the Fifth
Amendment. This is a question of law, so we
review it de novo. United States v.
Kimbrough, 69 F.3d 723, 728 (5th Cir. 1995).
When a defendant challenges multiple pun-
ishments for the same conductSSrather than
multiple prosecutionsSSour double jeopardy
analysis turns on whether Congress has
authorized the result at issue. If Congress has
enacted statutes that separately punish the
same conduct, there is no double jeopardy
violation. Missouri v. Hunter, 459 U.S. 359,
368-69 (1983); United States v. Prestenbach,
230 F.3d 780, 782 n.9 (5th Cir. 2000). Where
that inquiry proves inconclusive, we disregard
intent and determine “whether conviction
under each statutory provision requires proof
of an additional fact which the other does not.”
United States v. Corona, 108 F.3d 565, 572
(5th Cir. 1997) (quoting United States v. Ngu-
yen, 28 F.3d 477, 482 (5th Cir.1994)). Where
punishment is assessed under three or more
statutory provisions, each offense must require
proof of a fact that is not part of the sum of
the elements necessary to prove the other two
offenses. Id.; see also Blockburger v. United
States, 284 U.S. 299 (1932).
Smith relies on Corona to challenge her
concurrent sentences for (1) arson under 18
U.S.C. § 844(i); (2) conspiracy to commit
arson and mail fraud under 18 U.S.C. § 371;
and (3) use of fire to commit a felony under 18
U.S.C. § 844(h)(1). In Corona, 108 F.3d at
573, we held that the Double Jeopardy Clause
was violated by a sentence issued under the
11 In Jackson, the court observed that “the idea
that ‘whenever a private residence is broken into,
there is always a substantial risk that force will be
used’” is a critical element of the conclusion that
the burglary of a home is a “crime of violence”
within the meaning of U.S.S.G. § 4B1.2(a)(2).
Jackson, 22 F.3d at 585 (quoting United States v.
Flores, 875 F.2d 1110, 1113 (5th Cir.1989)).

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8
same three statutes where the predicate felony
in the use of fire count is a conspiracy to com-
mit arson. Citing Blockburger, we observed
that “[o]nce the jury has found the defendants
guilty of arson and conspiracy to commit ar-
son, it has found them guilty of using fire as
part of that conspiracy.” Id.
The government’s first response, that Cor-
ona was “limited . . . to its particular facts” by
a subsequent panel, is totally meritless. Just as
no subsequent panel of this court is free, ab-
sent intervening Supreme Court decisions, to
overrule the decisions of another panel, no
panel is empowered to hold that a prior
decision applies only on the limited facts set
forth in that opinion. Moreover, the case cited
by the government, United States v. Nguyen,
117 F.3d 796, 797 n.1 (5th Cir. 1997) (per
curiam), does not purport to do anything more
than distinguish Corona in a case arising out of
different statutes. We are unable to do the
same, because Corona and the present dispute
arise under 18 U.S.C. §§ 371, 844(h)(1), and
844(i).
Nevertheless, even under the Blockburger
analysis employed in Corona, there is no
double jeopardy violation here. The critical
difference between this case and Corona is
that the superseding indictment charged this
defendant with the use of fire to commit mail
fraud under 18 U.S.C. § 1341 and use of fire
in furtherance of the conspiracy to commit
arson and mail fraud under § 371. This cures
the double jeopardy problem found in Corona,
because it requires the government to prove an
additional fact, in the use-of-fire count, that is
not an essential element of either the arson or
the conspiracy.
We agree with our sister circuits that it
does not violate double jeopardy to convict of
both arson and the use of fire to commit mail
fraud.12 Each of these offenses contains a
unique fact not required by the other offense:
Arson requires the attempted destruction of a
building, and the use of fire to commit a felony
violation of § 1341 requires the use of the
mails to defraud another. Thus, the common
requirement that fire be used for the § 844-
(h)(1) use-of-fire count and the § 844(i) arson
count does not constitute double jeopardy.
From this, it also follows that the double
jeopardy clause is not violated by Smith’s sen-
tence, because each statute requires proof of
an element not found in the others. Arson, un-
der § 844(i), requires the use of fire to destroy
a building. Conspiracy to commit arson under
§ 371 requires an agreement to use fire to de-
stroy a building. And, finally, the use of fire to
commit mail fraud under §§ 844(h)(1) and
1341 requires the use of fire to defraud
someone through the mails. Because the §
1341 mail fraud charge can be satisfied with or
without the use of fire, and it requires proof of
facts not required by the other statutes, it does
not violate double jeopardy to punish for ar-
son, conspiring to commit arson, and using fire
to commit mail fraud.
The only remaining consideration is wheth-
er our conclusion is affected by the fact that
count 4 of the indictment alleges the use of fire
to commit mail fraud and conspiracy because,
under Corona, arguably it would violate
double jeopardy to punish the defendant for
the use of fire in connection with the con-
12 See United States v. Zendeli, 180 F.3d 879,
886 (7th Cir. 1999); United States v. Fiore, 821
F.2d 127, 130-31 (2d Cir. 1987).

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9
spiracy.13 The government’s decisions on how
to charge do not taint do not taint the overall
analysis here, however, because the jury found
that Smith committed both underlying felonies,
and the burning of the motel was central to the
government’s arguments for each. Count 1
lists the burning of the motel as one of the
overt acts of the conspiracy, and count 3 lists
the arson as part of the scheme to create a
false insurance claim. As a result, the use-of-
fire count is adequately supported by the
felony of mail fraud, even if not by the
conspiracy.14
AFFIRMED.
13 We say “arguably” only because the govern-
ment made the issue even more complicated by
charging that fire was used to commit a “conspir-
acy to commit mail fraud and arson,” and Corona
does not prohibit a conviction on the use of fire to
commit a mail fraud conspiracy.
14 We note, however, that the government took
an unnecessary risk in combining the conspiracies
into a single count, because there was the possi-
bility that even a technical acquittal on the mail
fraud count would leave it unable to proceed on the
use-of-fire count, and we would be unable to
determine whether the jury found fire was used in
a conspiracy to commit mail fraud or, instead, in a
conspiracy to commit arson.

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