United States v. Pao Xiong

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1410
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
P AO X IONG,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:07-cr-00112-WCG-2—William C. Griesbach, Judge.
A RGUED JANUARY 19, 2010—D ECIDED F EBRUARY 8, 2010
Before B AUER and W OOD , Circuit Judges, and K ENNELLY,
District Judge.Œ
B AUER, Circuit Judge. Pao Xiong burned down his
mother’s supermarket to help her collect the insurance
money. He is currently serving fifteen years in prison. The
Œ
The Honorable Matthew F. Kennelly, United States
District Court for the Northern District of Illinois, sitting by
designation.
2 No. 09-1410
district court convicted him of arson, 18 U.S.C. § 844(i);
mail fraud, 18 U.S.C. § 1341; conspiracy to commit arson
and mail fraud, 18 U.S.C. § 371; and the use of fire
to commit another felony (the mail fraud), 18 U.S.C.
§ 844(h). These various offenses overlap, Xiong claims,
to such a degree that they violate his rights under the
Fifth Amendment’s Double Jeopardy Clause. We disagree.
The Double Jeopardy Clause provides that no person
shall “be subject for the same offense to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V. In addi-
tion to protecting people from being subjected to
multiple trials for the same offense, the clause also
protects against cumulative punishments imposed in a
single trial by “prevent[ing] the sentencing court from
prescribing greater punishment than the legislature
intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983).
The test often used to determine legislative intent, and
the one Xiong urges us to use, is the well-established
rule from Blockburger v. United States, 284 U.S. 299 (1932),
which compares the elements of one offense to the ele-
ments of another to determine “whether each provision
requires proof of a fact that the other does not,” i.e.,
whether the offenses are effectively different. Id. at 304.
When the two offenses are effectively different, we pre-
sume Congress intended separate punishments for the
multiple offenses. When they are effectively the same,
we presume Congress intended only one punishment.
See Rutledge v. United States, 517 U.S. 292, 297 (1996).
The Blockburger test usually compares the elements only
of two offenses, but Xiong urges us to compare the ele-
No. 09-1410 3
ments of one offense (use of fire to commit a felony) to
the sum of the elements of multiple offenses (arson,
mail fraud, and conspiracy), as one of our sister circuits
has done. See United States v. Smith, 354 F.3d 390, 398
(5th Cir. 2003); see also United States v. Patel, 370 F.3d 108,
114 (1st Cir. 2004). “It is just as unlikely,” Xiong claims,
“that Congress would have intended two crimes to be
charged, when one is identical to the other, as it would
be for four crimes to be charged, where the fourth is
identical to the preceding three.” Appellant’s Br. at 13.
We have not applied this combination approach to
Blockburger in similar circumstances. See United States v.
Gardner, 211 F.3d 1049 (7th Cir. 2000); United States v.
Zendeli, 180 F.3d 879 (7th Cir. 1999). And we need not
decide whether to adopt the Blockburger combination
approach as a proper rule of statutory construction. Even
if we were to apply it, Xiong’s convictions would stand,
because each of the sum of the first three offenses, on the
one hand, and the use of fire to commit a felony, on the
other, “requires proof of a fact that the other does not.”
Blockburger, 284 U.S. at 304.
First, the sum of arson, mail fraud, and conspiracy
requires proof that use of fire to commit a felony does
not, and we will name two: an agreement and arson.
The use of fire to commit a felony does not require proof
of an agreement, one element of a conspiracy. Nor
does it require proof of arson, which involves burning
a “building, vehicle, or other real or personal property,”
18 U.S.C. § 844(i), because it could be proved, for
instance, if one were to commit insurance fraud by
burning crops.
4 No. 09-1410
On the flip side, use of fire to commit a felony requires
proof that the sum of the other three does not: a nexus
between the use of fire and the felony. See, e.g., Patel, 370
F.3d at 116; Smith, 354 F.3d at 399; United States v. Martin,
523 F.3d 281, 292-93 (4th Cir. 2008). The sum of arson,
mail fraud, and conspiracy does not require proof that
the arson or the overt act element of a conspiracy were
done in furtherance of the mail fraud. Indeed, all three
could be unconnected events without any nexus. It
matters not that Mr. Xiong’s arson, mail fraud, and
certain overt acts were connected, because the Blockburger
test focuses not on the facts of an individual’s case, but
generically “on the proof necessary to prove the
statutory elements of each offense.” Illinois v. Vitale, 447
U.S. 410, 416 (1980).
Under the Blockburger combination approach Xiong
urges, we discern that Congress intended separate pun-
ishments for Xiong’s convicted offenses. His convictions
are A FFIRMED.
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