United States v. Gardner, Ruby

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2193
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUBY GARDNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 97 CR 20054--Michael P. McCuskey, Judge.
Argued January 12, 2000--Decided May 3, 2000
Before POSNER, Chief Judge, and COFFEY and RIPPLE,
Circuit Judges.
RIPPLE, Circuit Judge. On April 23, 1995, a fire
occurred at the offices of Gardner Trucking, Inc.
Thereafter, Ruby Gardner was charged with arson
in violation of 18 U.S.C. sec.sec. 844(i) and 2
(Count I), mail fraud in violation of 18 U.S.C.
sec.sec. 1341 and 2 (Counts II and III), and
using fire to commit a federal felony in
violation of 18 U.S.C. sec. 844(h) (Count IV).
Although she pleaded not guilty, a jury found her
guilty on all four counts. The district court
sentenced her to 33 months imprisonment for each
of Counts I, II and III, to be served
concurrently, and to 60 months imprisonment for
Count IV, to be served consecutively to the 33-
month term. Ms. Gardner appeals. She claims that
there was insufficient evidence to convict her,
that the district court abused its discretion in
allowing the expert testimony of Dr. John DeHaan,
and that the sentencing scheme under 18 U.S.C.
sec. 844(h), as applied, does not reflect the
intent of Congress and is also violative of the
Eighth Amendment. For the reasons set forth in
the following opinion, we affirm the judgment of
the district court.
I
BACKGROUND
A.
1.
Ms. Gardner was part owner, president, and
director of Gardner Trucking. Among her duties,
she handled the financial aspects of the
corporation. Gardner Trucking experienced
financial difficulties prior to the fire on April
23, 1995. For example, the company was often late
paying its rent. Its drivers experienced
difficulties being paid, obtaining money to
purchase fuel, and having the company repair
their trucks. Revenues at the beginning of 1995
were less than half the revenues from the same
time frame in 1994. The company wrote an
increasing number of checks without sufficient
funds and told several creditors that it was
experiencing financial problems.
Also, at the beginning of 1995, the Internal
Revenue Service ("IRS") informed Ms. Gardner
that, because of an outstanding tax lien, it
would attempt to attach the company’s assets.
Consequently, on March 30, it required her to
produce corporate records to determine if any
funds were available for collection. Meanwhile,
around March 28, the company received a notice of
intent to cancel insurance policies on its trucks
based on overdue policy payments. By the week of
April 21, Gardner Trucking was not paying its
drivers or its clerical employees.
According to the testimony at trial, at the time
of the fire, Gardner Trucking owed $136,000 with
just over $10,000 in cash accounts. It had
several debts that were past due or in arrears
and tax liens from both the Illinois Department
of Revenue and the IRS.
Approximately two weeks prior to the fire, Ms.
Gardner called Turner Risk Management seeking an
insurance premium quote for Gardner Trucking’s
office property. Seven days before the fire, she
asked her brother-in-law, an independent
insurance agent for Funk Insurance Agency, to
write a commercial insurance policy for Gardner
Trucking. Five days before the fire, the agency
issued a 30-day insurance binder on behalf of
American States Insurance Company to Gardener
Trucking with a contents replacement cost policy
limit of $106,200. Prior to receiving this
insurance policy, Gardner Trucking had not been
insured since October 7, 1994; its previous
policy had been canceled because of its failure
to pay its premiums.
2.
Shortly after 3 p.m. on Sunday, April 23, 1995,
Jerry and Judith Livingston were driving to their
house, which was located about 60 feet from the
building where Gardner Trucking was situated,
when a car cut them off. Both Jerry and Judith
Livingston testified that the car was driven by
Ms. Gardner and that it had the license number
LGM 439. The car and license plate were both
registered to Ms. Gardner. After driving in front
of the Livingstons, the car turned into Gardner
Trucking and parked. Jerry Livingston testified
that, at this time, no smoke or fire could be
seen at Gardner Trucking.
About 20 to 30 minutes after the Livingstons
arrived home, a neighbor arrived to tell them
that Gardner Trucking was aflame. Jerry
Livingston went outside and saw heavy black smoke
rising from the building. The Livingstons noticed
Ms. Gardner sitting in her car across the street.
Firefighters arrived and forced their way into
the building. The volunteer fire chief, Don
Madlem, arrived at the fire at approximately 4:12
p.m. and talked with Ms. Gardner. According to
Madlem, she appeared excited and concerned about
the fire but not hysterical or crying. In fact,
he stated that she spoke with a normal,
conversational tone.
That same night, Illinois State Fire Marshal
Investigator Donald Tankersley arrived to examine
the scene of the fire. He observed that the
heaviest fire damage had occurred in Ms.
Gardner’s office and in the adjoining office and
concluded that the fire had originated in those
two rooms. The center floor area of Ms. Gardner’s
office was burned out, which indicated intense
fire at the floor level. The detection dog
alerted in this area and at several places in the
adjoining office, which indicated the possibility
that an ignitable liquid was present. The dog did
not alert in any place other than Ms. Gardner’s
office and the adjoining office. Tankersley
opined, based on the findings and the data
collected at the scene, that the fire was set
intentionally.
Insurance investigator Stephen Briggs examined
the scene of the fire three days later. According
to Briggs, the heat and burn patterns were
consistent with an accelerant being used in the
fire and with two separate areas of origin for
the fire. The doors were locked throughout the
duration of the fire, and no forcible entry,
other than that of the firefighters, was evident.
Based on his personal examination of the wiring
of the entire building, Briggs determined that
the source of the fire was not the electrical
system. Although Briggs’ written report of his
investigation did not state explicitly that he
ruled out the electrical system as the cause of
the fire, at trial he testified to that effect.
Briggs concluded, at trial, that the fire
originated at floor level, that a large quantity
of liquid accelerant had been used in Ms.
Gardner’s office and in the adjoining office, and
that the two fires were set intentionally.
As part of the investigation, samples from the
scene of the fire were sent to Bri-Mar
International Laboratories for analysis. Samples
from Ms. Gardner’s office and from the adjoining
office contained a Class 2 accelerant; Class 2
accelerants include gasolines and camping fuels.
The Government retained Dr. John DeHaan, an
expert in investigating the cause and origin of
fires, to review the evidence from the fire. He
reviewed 120 photographs and the three reports
from the investigators of the fire scene./1 He
also conducted personal interviews with people
who were at the scene to learn additional details
about the fire. According to the testimony at
trial, experts in the field of fire cause and
origin investigation commonly rely on
photographs, videotapes, diagrams, sketches,
interview reports, and personal interviews with
persons present at the scene to formulate an
opinion. In Dr. DeHaan’s opinion, the data he
received was sufficient to make a proper analysis
of this particular fire.
Dr. DeHaan opined that two separate origins of
the fire existed, that faulty electrical wiring
was not the ignition source, and that the burn
pattern and the damage were consistent with the
use and presence of an accelerant.
3.
Around June 26 or 27, Ms. Gardner sent, through
the United Parcel Service, proof of loss to
Gardner Trucking’s insurer. Then, on July 12, she
sent the insurer, through United States Mail,
additional documents relating to her insurance
claim. These two acts formed the basis for the
two counts of mail fraud. They also were the
basis for the charge of using fire to commit a
felony because the Government argued that Ms.
Gardner had used fire to commit the underlying
felony of mail fraud.
B.
1.
At trial, defense counsel cross-examined
Tankersley about the possibility that electrical
wiring had caused the fire, and Tankersley
conceded that he had not investigated the
electrical system at all but had ruled out the
electrical system as a possible source of the
fire based only on reports of other scene
investigators. Briggs testified that he had ruled
out the electrical system as the cause of the
fire by examining the wiring of the entire
building, but defense counsel, on cross-
examination, attempted to impeach Briggs’ method
of investigation and noted that Briggs’ written
report did not state explicitly that he had ruled
out an electrical cause of the fire.
Ms. Gardner made a motion in limine to exclude
the testimony of Dr. DeHaan, which the court
denied. She renewed this motion after Briggs’
testimony and claimed that Dr. DeHaan’s proposed
testimony was cumulative and was lacking in
direct knowledge. The district court again denied
the motion and ruled that, based on the cross-
examination of the Government’s other expert
witnesses, the testimony was still unclear
whether a potential electrical cause of the fire
had been properly examined. Dr. DeHaan proceeded
to testify at trial that electrical wiring
problems had not caused the fire, that an
accelerant had been used and, thus, that the fire
was set intentionally.
2.
The jury found Ms. Gardner guilty of all four
charges in the indictment. At sentencing, the
district court determined that Ms. Gardner’s
offense level was 20 and that her criminal
history was Category I. Therefore, the district
court found that her guideline sentencing range
was 33 to 45 months on the arson and mail fraud
counts and that she faced a mandatory minimum of
60 additional months to be served consecutively
for using fire to commit a felony. The court
sentenced her to 93 months imprisonment: 33
months for the arson count and for the two mail
fraud counts, to be served concurrently, and 60
months for the final count of using fire to
commit a felony, to be served consecutively.
II
DISCUSSION
A.
We first address Ms. Gardner’s claim that her
conviction is based on insufficient evidence.
When reviewing an insufficiency of the evidence
claim, we must accept the evidence in the light
most favorable to the prosecution. See United
States v. Szarwark, 168 F.3d 993, 995 (7th Cir.
1999); United States v. O’Brien, 119 F.3d 523,
532 (7th Cir. 1997); United States v. Dunigan,
884 F.2d 1010, 1013 (7th Cir. 1989). Also, "[o]ur
inquiry is limited to a determination of whether
any rational trier of fact could have found the
elements of the offense charged beyond a
reasonable doubt." Dunigan, 884 F.2d at 1013. We
shall "’overturn a verdict only when the record
contains no evidence, regardless of how it is
weighed, from which the jury could find guilt
beyond a reasonable doubt.’" Szarwark, 168 F.3d
at 995 (quoting United States v. Moore, 115 F.3d
1348, 1363 (7th Cir. 1997)).
The statutory provision for arson states in
pertinent part: "Whoever maliciously damages or
destroys, or attempts to damage or destroy, by
means of fire or an explosive, any building"
shall be fined and/or imprisoned. 18 U.S.C. sec.
844(i). Ms. Gardner submits that there was
insufficient evidence to prove that she had a
motive to burn Gardner Trucking. Noting that its
obligation is to prove intent, not motive,/2 the
Government counters that it presented
circumstantial evidence to establish that Ms.
Gardner had the requisite intent. That evidence,
if credited by the jury, would indeed have shown
that she had the necessary intent. Specifically,
the Government introduced evidence of her
corporation’s financial condition. In addition,
the evidence showed that she was seen near the
building soon before the fire started, that she
did not appear upset after learning of the fire,
and that the fire had been set intentionally. On
the basis of this evidence, a rational jury was
entitled to conclude that Ms. Gardner had the
requisite state of mind for arson and that she
did, in fact, burn Gardner Trucking.
Ms. Gardner also urges us to determine that
there was insufficient evidence to find that one
of the witnesses who saw her on the scene, Jerry
Livingston, was credible. Our review of a jury’s
credibility determination entails the utmost
deference. See Dunigan, 884 F.2d at 1013. "[I]t
is not our role, when reviewing the sufficiency
of the evidence, to second-guess a jury’s
credibility determinations." United States v.
McGee, 189 F.3d 626, 630 (7th Cir. 1999). As we
have stated, "’absent extraordinary
circumstances,’ this court will not reevaluate
the testimony of a witness to determine his or
her motives or other possible measures of
reliability." Dunigan, 884 F.2d at 1013 (quoting
United States v. Garner, 837 F.2d 1404, 1423 (7th
Cir. 1987)). The testimony that Ms. Gardner
questions was heard by the jury. The jury is the
fact-finder and, thus, is the body responsible
for weighing credibility. Because Ms. Gardner has
not shown us any reason, other than slight
contradictions in Livingston’s testimony, to
reverse the credibility determination of the
jury, we hold that her sufficiency of the
evidence claim must fail.
B.
Ms. Gardner next questions the district court’s
decision to allow the expert testimony of Dr.
DeHaan. She submits that his testimony did not
have a reliable basis and that it was cumulative.
For either of these reasons, Ms. Gardner claims,
this court should conclude that the district
court abused its discretion in allowing Dr.
DeHaan to testify.
1.
Ms. Gardner argues first that the Government did
not have a reliable basis for admitting the
expert testimony of Dr. DeHaan. Federal Rule of
Evidence 702 sets forth when an expert’s
testimony may be admitted:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact in
issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
Fed. R. Evid. 702.
Before the district court may allow expert
testimony into evidence, the submitting party
must show that the testimony has a reliable
basis. Rule 703 of the Federal Rules of Evidence
explains:
The facts or data in the particular case upon
which an expert bases an opinion or inference may
be those perceived by or made known to the expert
at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in
forming opinions or inferences upon the subject,
the facts or data need not be admissible in
evidence.
Fed. R. Evid. 703. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993),
clarifies that an expert may testify after the
trial judge determines that "the expert is
proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to
understand or determine a fact in issue." Id. at
592.
Here, Dr. DeHaan testified about the cause and
origin of the fire, which helped the jury
determine whether the fire was caused by arson.
Thus, Dr. DeHaan’s testimony meets the
requirements of Rule 702. We also believe that
the requirements of Rule 703 and the Supreme
Court’s holding in Daubert have been met. Dr.
DeHaan’s reliance on reports, photographs, and
third-party observations, which may not have been
admissible into evidence, served as a reliable
basis for his testimony because these materials
are facts or data "of a type reasonably relied
upon by experts" in the field of fire cause and
origin. See United States v. Lundy, 809 F.2d 392,
395 (7th Cir. 1987); United States v. Lawson, 653
F.2d 299, 302 (7th Cir. 1981); see also In re
James Wilson Assocs., 965 F.2d 160, 172-73 (7th
Cir. 1992).
In Lundy, this court allowed hearsay and third-
party observations to be used by an expert of
arson investigation in forming his opinion. See
809 F.2d at 394-95. Similarly, in Lawson, we
allowed a psychiatrist testifying as an expert to
rely on staff reports, interviews with other
doctors, and background information from the
Marine Corps and United States Attorney’s Office
to form the basis of his opinion. See 653 F.2d at
302. In both cases, we allowed these materials to
form the basis for the expert’s testimony because
they were of a type reasonably relied on by
experts in the field. Similarly, the Sixth
Circuit, in United States v. Ashworth, 836 F.2d
260 (6th Cir. 1988), recognized that photographs
are standard materials used by arson
investigators. See id. at 264.
Here, Dr. DeHaan and the other experts called to
the witness stand testified that photographs and
reports are the type of materials usually relied
on in arson investigation to form an opinion
about the cause of the fire. The district court
was entitled to credit that testimony and to
conclude that the materials that Dr. DeHaan used
as the basis for his testimony were of a type
reasonably relied on by experts in his field and,
thus, were an appropriate basis for his expert
opinion.
2.
Ms. Gardner argues next that Dr. DeHaan’s
testimony was cumulative and therefore
prejudicial. Rule 403 of the Federal Rules of
Evidence states:
Although relevant, evidence may be excluded if
its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
Fed. R. Evid. 403. "The court’s admission of
evidence under Rule 403 of the Federal Rules of
Evidence is entitled to special deference. ’Only
in an extreme case are appellate judges competent
to second-guess the judgment of the person on the
spot, the trial judge.’" United States v.
Bradley, 145 F.3d 889, 892 (7th Cir. 1998)
(quoting United States v. Crockett, 979 F.2d
1204, 1211 (7th Cir. 1992)). Determining whether
testimony is cumulative rests within the sound
discretion of the district court. See United
States v. Kizeart, 102 F.3d 320, 325 (7th Cir.
1996).
"Evidence is ’cumulative’ when it adds very
little to the probative force of the other
evidence in the case, so that if it were admitted
its contribution to the determination of truth
would be outweighed by its contribution to the
length of the trial, with all the potential for
confusion, as well as prejudice to other
litigants, who must wait longer for their trial,
that a long trial creates." United States v.
Williams, 81 F.3d 1434, 1443 (7th Cir. 1996); see
also Bradley, 145 F.3d at 894 (stating that a
piece of evidence is not cumulative if its
evidentiary value outweighs its contribution to
the length of the trial).
Dr. DeHaan’s testimony was not cumulative
because the Government used it to reply to the
cross-examination of its earlier experts. His
testimony addressed whether the fire had an
electrical source. This evidence was probative
because, if faulty electrical wiring caused the
fire, Ms. Gardner would not be guilty of arson.
On the other hand, if faulty electrical wiring
clearly did not cause the fire, then the
investigators and the jury needed to search for
an alternative source of the fire, such as arson.
During the cross-examinations of the Government’s
other expert witnesses, Tankersley and Briggs,
defense counsel suggested that the fire was not
the result of arson but was caused by an
electrical problem. The cross-examination of
Tankersley demonstrated that he had not
determined personally that the electrical system
was not the cause of the fire but that he had
based his opinion on the conclusions found in the
reports of other scene investigators. The cross-
examination of Briggs questioned his method for
concluding that the electrical wiring did not
cause the fire. It also noted that his written
report lacked a conclusion that ruled out the
electrical system. Because the defense had placed
in question, through cross-examination, the
thoroughness of the other experts’
investigations, the district court certainly did
not abuse its discretion in allowing Dr. DeHaan
to testify on the same issue.
C.
Ms. Gardner submits that applying consecutive
sentence terms for arson and for using fire to
commit a federal felony is unconstitutional on
Double Jeopardy and Eighth Amendment grounds./3
1.
Ms. Gardner first claims, in essence, that the
statute violates the Double Jeopardy Clause of
the Fifth Amendment. She submits that Congress
did not intend to authorize separate and
consecutive punishments for the offense of arson
and for the offense of using fire to commit a
federal felony.
This circuit already has confronted this issue
in United States v. Zendeli, 180 F.3d 879 (7th
Cir. 1999). In that case, we noted that the
judicial task was to determine whether Congress,
in enacting the statute, intended for separate
sections of the statute to authorize the
imposition of separate punishments./4
In Zendeli, because the language, structure, and
legislative history of the statute could yield no
clear answer,/5 we relied on the test enunciated
by the Supreme Court in Blockburger v. United
States, 284 U.S. 299 (1932):
The applicable rule is that, where the same act
or transaction constitutes a violation of two
distinct statutory provisions, the test to be
applied to determine whether there are two
offenses or only one is whether each provision
requires proof of an additional fact which the
other does not.
Id. at 304./6 In Zendeli, under
indistinguishable circumstances, we held that
each of the two statutory provisions involved
here requires a different element that the other
does not. To prove arson under sec. 844(i), the
Government must show that a defendant damaged or
attempted to damage "property used in interstate
or foreign commerce or in any activity affecting
interstate or foreign commerce." 18 U.S.C. sec.
844(i). To prove that a defendant used fire to
commit a felony under sec. 844(h), the Government
must show that the defendant committed a separate
"felony which may be prosecuted in a court of the
United States." 18 U.S.C. sec. 844(h). Here, that
felony is mail fraud. The Government must have
proven that Ms. Gardner made use of the United
States mail to attempt to defraud the insurance
company./7
A principled adherence, as dictated by the
doctrines of stare decisis and precedent, to our
decision in Zendeli requires that we hold that
Ms. Gardner may be sentenced for arson, for mail
fraud, and for use of fire to commit a federal
felony without violating the Double Jeopardy
Clause of the Fifth Amendment. See Zendeli, 180
F.3d at 886; Nguyen, 28 F.3d at 485.
2.
Finally, Ms. Gardner claims that the statute
violates the Eighth Amendment. However, although
Ms. Gardner sets out the standard for a violation
of the Eighth Amendment, she does not explain why
this statute violates the Eighth Amendment or why
this statute results in excessive punishment.
Furthermore, "the level of punishment to be
imposed for crimes is the business of Congress,
not the courts. Only in very narrow circumstances
has a punishment within statutory limits been
held to violate the Eighth Amendment." United
States v. Farmer, 73 F.3d 836, 840 (8th Cir.
1996).
Conclusion
For the foregoing reasons, we affirm the
judgment of the district court.
AFFIRMED
/1 Dr. DeHaan reviewed the reports from Tankersley,
another fire marshal, and an insurance
investigator.
/2 See United States v. Wilson, 2 F. Supp. 2d 1170,
1171 (E.D. Wis. 1998) ("[M]ost crimes require
only proof of an act and an intent to so act.
Motive is usually relegated to the status of
immateriality.").
/3 The statutory provision for arson states as
follows:
(i) Whoever maliciously damages or destroys, or
attempts to damage or destroy, by means of fire
or an explosive, any building, vehicle, or other
real or personal property used in interstate or
foreign commerce or in any activity affecting
interstate or foreign commerce shall be
imprisoned for not less than 5 years and not more
than 20 years, fined under this title, or both .
. . .
18 U.S.C. sec. 844(i). The statute for using fire
to commit a felony states as follows:
(h) Whoever--
(1) uses fire or an explosive to commit any
felony which may be prosecuted in a court of the
United States, or
(2) carries an explosive during the commission
of any felony which may be prosecuted in a court
of the United States,
. . . shall, in addition to the punishment
provided for such felony, be sentenced to
imprisonment for 5 years but not more than 15
years. . . .
18 U.S.C. sec. 844(h).
/4 See Garrett v. United States, 471 U.S. 773, 778
(1985) ("Where the same conduct violates two
statutory provisions, the first step in the
double jeopardy analysis is to determine whether
the legislature--in this case Congress--intended
that each violation be a separate offense."). See
also United States v. Hayward, 6 F.3d 1241, 1245
(7th Cir. 1993) ("A court’s starting point to
determine the intent of Congress is the language
of the statute itself."). If a statute clearly
indicates on its face that Congress intended both
statutory provisions to be applied for the same
conduct, then the statute controls.
If "[t]he provisions are unambiguous on their
face and each authorizes punishment for a
violation of its terms," then Congress intended
punishment under each. Albernaz v. United States,
450 U.S. 333, 336 (1981); see also United States
v. Corona, 108 F.3d 565, 572 (5th Cir. 1997)
("When multiple punishments are at issue, our
inquiry focuses on whether Congress intended for
the defendant’s actions to be subject to the
punishment received. If statutory language
authorizes the punishment, there can be no double
jeopardy violation."); cf. United States v.
Fiore, 821 F.2d 127, 130 (2d Cir. 1987) ("If the
offenses charged are set forth in different
statutes or in distinct sections of a statute,
and each section unambiguously authorizes
punishment for a violation of its terms, it is
ordinarily to be inferred that Congress intended
to authorize punishment under each provision.").
/5 See Zendeli, 180 F.3d at 888 (Ripple, J.,
dubitante) (stating that, for sec. 844, "[t]here
is simply no evidence in this statute, its
structure, or the legislative history that
Congress has authorized consecutive punishments
for arson and for arson in the course of the
commission of another felony"); see also United
States v. Karlic, 997 F.2d 564, 571 (9th Cir.
1993); Fiore, 821 F.2d at 133 (Newman, J.,
concurring); Anti-Arson Act of 1982, Pub. L. No.
97-298, 96 Stat. 1319; H.R. Rep. No. 97-678, at 1
(1982), reprinted in 1982 U.S.C.C.A.N. 2631.
/6 See also Whalen v. United States, 445 U.S. 684,
693-94 (1980); Zendeli, 180 F.3d at 885-86 (7th
Cir. 1999); Corona, 108 F.3d at 572; United
States v. Nguyen, 28 F.3d 477, 485 (5th Cir.
1994); Karlic, 997 F.2d at 570-71; Fiore, 821
F.2d at 130; United States v. Chaney, 559 F.2d
1094, 1096 (7th Cir. 1977).
/7 United States v. Chaney is not controlling. See
Zendeli, 180 F.3d at 887 (Ripple, J., dubitante).
In Chaney, the defendant was charged in Count I
under sec. 844(i) with maliciously attempting to
destroy a structure by means of an explosive and
was charged in Count III under sec. 844(h) with
knowingly using an explosive to commit a felony,
that is, the felony of maliciously attempting to
destroy a structure by means of an explosive. See
Chaney, 559 F.2d at 1096. As this court
discussed, a comparison of the two counts showed
that the charges were identical except for which
statutory provision they were charged under. See
id. "Therefore, the evidence necessary to prove
the offense charged under Count I would prove the
offense charged under Count III, and vice versa."
Id. Therefore, we concluded that, because the
Double Jeopardy analysis asks whether each
statutory provision requires proof of a fact
which the other does not and because each count
would be proved by identical evidence, the two
counts constituted the same offense under the
Double Jeopardy Clause. See id.