     Case: 11-30525       Document: 00512187631         Page: 1    Date Filed: 03/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                           FILED
                                                                         March 26, 2013

                                      No. 11-30525                        Lyle W. Cayce
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JERMAINE SURTAIN; CHARLES MOSS; DAVID SAMUELS,

                                                  Defendants-Appellants



                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:09-CR-123-4


Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendants-Appellants appeal their convictions and sentences on various
counts relating to their involvement in three insurance fraud schemes. For the
reasons that follow, we VACATE David Samuels’s sentences on Counts 12 and
13 of the superseding indictment, REMAND for resentencing on one of those
counts (at the government’s election), and AFFIRM in all other respects.




       *
        Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in 5TH
CIRCUIT RULE 47.5.4.
    Case: 11-30525     Document: 00512187631      Page: 2   Date Filed: 03/26/2013



                                  No. 11-30525

            I. FACTUAL AND PROCEDURAL BACKGROUND
      On December 4, 2009, the grand jury returned a superseding indictment
against Defendants-Appellants David Samuels, Charles Moss, and Jermaine
Surtain, variously charging them and three other co-defendants with one count
of conspiracy to commit mail and wire fraud under 18 U.S.C. § 371, three counts
of mail fraud under 18 U.S.C. § 1341, seven counts of wire fraud under 18 U.S.C.
§ 1343, one count of use of fire to commit obstruction of justice and two counts
of use of fire to commit mail fraud under 18 U.S.C. § 844(h)(1), one count of
making a false statement under 18 U.S.C. § 1001, and aiding and abetting under
18 U.S.C. § 2 as to the wire fraud, mail fraud, and use-of-fire counts. The charges
arose from separate insurance fraud schemes that culminated in arson, murder,
and the destruction of a van used in the killing.
      At trial, cooperating co-defendant Damian Landry testified that Samuels
worked with him at Volunteers of America, an elder care provider in New
Orleans. When Landry and his wife fell behind on mortgage payments for her
house in 2002, Samuels advised Landry to increase his insurance coverage on
the house and burn it down for the proceeds. Landry agreed, and Samuels set
out to find someone who would set fire to the house for a share of the insurance
money. Samuels ultimately recruited Moss, an army buddy of his from Detroit.
      Landry testified that on the day the house burned down, he and Samuels
reported to work, and Landry then left to get breakfast. Samuels and Moss met
Landry later that morning and told him they would burn the house that day.
Samuels gave Landry the keys to his green Chrysler van, and Landry gave
Samuels the keys to a white 1991 Chevrolet with temporary tags. The car was
unregistered, making it impossible to trace. At Samuels’s direction, Landry went
to a client’s house so that he would have an alibi.
      A neighbor testified that he was at home when he heard an explosion from
across the street. When he got to the window, he saw Landry’s house burning.

                                        2
    Case: 11-30525    Document: 00512187631    Page: 3   Date Filed: 03/26/2013



                                No. 11-30525

He also saw a man with a burned face and hair leave the house and enter an
older white car with temporary tags, which then sped away. Landry received a
phone call from his probation officer, who told him that his house was on fire.
Before Landry could return home, Samuels called and told him to come to
Samuels’s house. When he arrived, Samuels and Moss entered Landry’s vehicle.
Moss’s face was burned, and Samuels said they had to take Moss to the hospital.
Landry refused, and Samuels instead had his brother Chris take Moss. Landry
then returned home to find his house destroyed. He and Samuels later took the
white Chevrolet to a wrecking yard to be demolished.
      Landry filed a fire insurance claim on the house, but did not mention the
arson to the insurance company. Because the insurance payment he received
was not as large as he had anticipated, he used it to pay the mortgage company
and did not tell Samuels that he had obtained the money. After Samuels
pressured him for the insurance proceeds several times (sometimes violently),
Landry gave Samuels $3,000 from his tax refund.
      Landry further testified that while the fire insurance claim was pending
in July 2003, he accompanied Samuels to insurance agent Stefan James’s office.
Samuels and James (a cooperating co-defendant in this matter) discussed
obtaining $100,000 to $150,000 of insurance coverage on the life of Treyor
Winston August, Samuels’s cousin. To that end, Samuels unsuccessfully sought
to convince Landry to pose as August.
      James testified that he knew Samuels through his wife, who also worked
at Volunteers of America. James had sold life insurance policies to Samuels and
Samuels’s wife, and had socialized with Samuels on occasion. James described
Samuels as a braggart, and testified that Samuels once said he would have his
cousin killed for stealing drugs from him. Several weeks after making this
statement, Samuels came to James’s office with Landry.



                                        3
    Case: 11-30525     Document: 00512187631      Page: 4   Date Filed: 03/26/2013



                                  No. 11-30525

      Even though James was aware of Samuels’s fraudulent and murderous
intentions, he ultimately sold Samuels a “double-indemnity” life insurance
policy. This meant that although the policy’s face value was $75,000, it would
pay out $150,000 if August’s death were accidental. Samuels structured the
policy in this way because any policy with a face value of $100,000 or more would
have prompted the underwriter to collect the insured’s blood and urine, and
administer a medical exam. August surely would have become aware of the
policy had he been asked for these things. The policy’s beneficiaries—Samuels
and his mother, Teresa—were falsely listed as August’s brother and mother.
Although August was listed as the policy’s owner, Samuels signed August’s
name on the application, had his own address listed on the policy to prevent
August from discovering its existence, and also noted on the application that
August should not be contacted at his workplace regarding the policy. Samuels
was involved in three subsequent fraudulent policies: (1) He took out a second
policy on August’s life for $25,000, the beneficiary being his sister, co-defendant
Maria Samuels; (2) he provided information to allow James to obtain a $25,000
policy on August’s life; and (3) he obtained a $90,000 “key man” policy on
August’s life, the beneficiary being his company, Sam’s Realty and Maintenance.
      Samuels’s brother Chris, who had taken Moss to the hospital following the
Landry house fire, testified that Samuels asked him to kill August for $20,000.
Samuels showed him one of the fraudulent life insurance policies to demonstrate
a means of payment. Chris testified that he was unwilling to kill his cousin, but,
wanting to stall Samuels and warn August, said he would do it. Chris told
August of Samuels’s plan and the insurance policy, and gave him a gun for
protection. As he related at trial, however, he felt that August did not take the
threat seriously.
      Apparently becoming impatient that Chris had not killed August, Samuels
eventually sought someone else for the task. According to phone records,

                                        4
    Case: 11-30525    Document: 00512187631     Page: 5   Date Filed: 03/26/2013



                                 No. 11-30525

Samuels placed two calls on April 24, 2004 to Surtain, who was his sister’s ex-
boyfriend and the father of her child, and who had recently returned to New
Orleans. Kelvin Marshall, who three years later would be apprehended with
Surtain in a burglary, testified that between 9:00 and 10:00 PM on April 24th,
Surtain called him to obtain nine-millimeter rounds for a pistol. Marshall went
to a friend’s house on Cortez Street to retrieve the ammunition. He then gave it
to Surtain, who was waiting outside with his girlfriend. The girlfriend dropped
Marshall off at a nearby bar; Surtain test-fired the pistol out the vehicle’s
window along the way. The girlfriend dropped Surtain off on Canal Street near
Warren Easton High School.
      August’s girlfriend testified that Samuels came to her house on April 24th
to ask for August. Although August was not home the first time Samuels came
by, Samuels returned a second time after he had come back from work. Samuels
stayed for a while, then left. Around nightfall, Moss came to August’s home in
Samuels’s green van. Moss spoke with August, left, then returned between 8:00
and 8:30 PM. He and August left between 9:00 and 9:30 PM, purportedly to
celebrate August’s birthday. Samuels attended a church service that night.
      Samuels later told a special agent of the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) that August had been shot in “the van,” ran
away, struggled with the shooter, and was shot once more. A trail of blood
consistent with this version of events was found at the murder scene. An
eyewitness testified that he and his wife were driving south on Bienville Street
between 9:50 and 10:00 PM on April 24th. Shortly after they crossed Jefferson
Davis Parkway, the witness saw a man bending over another man on the
median, and noticed the man on the ground had a large amount of blood on his
shirt. As the witness drove away, the first man shot the other one in the head.
An autopsy revealed that August had been shot six times, including once in the
head. Police recovered spent nine-millimeter casings from the murder scene.

                                       5
    Case: 11-30525     Document: 00512187631       Page: 6   Date Filed: 03/26/2013



                                   No. 11-30525

      Surtain’s girlfriend testified that Surtain called her later that night to pick
him up because police were in the area. She picked him up about two blocks
away from Jefferson Davis Parkway, and dropped him off on Cortez Street.
Marshall testified that Surtain returned to the house on Cortez Street that
night. Surtain’s jeans were covered in blood. The next day, Surtain told Marshall
and others that “he shot a dude” who then wrestled Surtain to the ground,
causing him to drop the gun. Surtain said that he “slammed the dude,” retrieved
the gun, and shot him again. James testified that Samuels told him he had
cleaned out blood from the van with bleach or ammonia.
      At 10:53 PM on April 24th, Samuels called James, and said, “Winston
ha[s] been killed. He’s dead. What do we need to do to get the claims process
going?” To avoid suspicion, James advised Samuels to wait before filing a claim.
Samuels’s sister’s claim was filed in June 2004, and his mother’s claim was filed
in July 2004. The insurance companies denied the claims due to
misrepresentations on the applications, and mailed refunds of the premiums to
Samuels, his sister, and his mother.
      A New Orleans police investigator spoke with Moss and Samuels on the
morning of April 26th, and explicitly told Moss not to leave town until the
detective investigating August’s murder could interview him. Samuels’s
girlfriend took Moss to the bus station later that day, where he boarded a bus for
Detroit. Although Moss initially told police that August was alive and walking
up the street the last time Moss had seen him, he later told ATF agents that he
saw August lying in the fetal position after Moss exited a bar.
      A GEICO employee testified that on April 28, 2004, someone requested
increased coverage on Samuels’s van. Samuels’s ex-wife and then-girlfriend,
Yolanda Fleming, testified that Moss called her and Samuels’s home on the
night of May 7, 2004, asking for Samuels. Samuels, who had just returned home,
spoke with Moss for about five minutes, then left the house. Samuels testified

                                         6
    Case: 11-30525     Document: 00512187631     Page: 7   Date Filed: 03/26/2013



                                  No. 11-30525

that he had also spoken with Surtain that night, but said their conversation had
been about drugs. Phone records showed that Samuels and Surtain called each
other twenty-six times on May 7th, including shortly before midnight.
      Between 1:00 and 2:00 AM on May 8th, Samuels called Fleming to ask
about his van, which was parked outside their house. Fleming said the van was
okay, then went back to sleep. Phone records showed that Samuels called
Surtain immediately after Fleming hung up, and again nine minutes later.
Fleming was later awoken by an explosion, and saw that the van was on fire.
Security camera footage showed that two individuals carrying something
approached the van that night and broke the passenger window. Shortly
thereafter, the van ignited. A fire inspector testified that the arsonists had
probably poured a flammable liquid into the car and set fire to it.
      After Fleming alerted emergency services, she called Samuels to tell him
what had happened. He instructed her to give the firemen and police a piece of
paper on which she had, at his direction, written times and dates when he had
purportedly received threatening phone calls. Fleming testified that she had
never received any threatening phone calls or been present when Samuels
received one. Samuels later suggested to his friend, Tony Veal, that the arsonists
destroyed the van because they thought Samuels had killed August. Upon being
questioned about the threats, Samuels was unable to relate any details about
their nature or content.
      The fire inspector who examined the van testified that it was abnormally
parked in an area where it would not cause Samuels’s house to catch fire, but
was still in view of the security camera. Samuels stated that he had moved the
van between 2:00 and 3:00 PM on May 7th to wash it. The investigator noticed,
however, that the closest water spigot was on the corner of the house opposite
the van. Samuels reported the fire to his insurance company on May 8th. The
insurance company issued a check to him for $4,094, which he later cashed.

                                        7
    Case: 11-30525     Document: 00512187631      Page: 8   Date Filed: 03/26/2013



                                  No. 11-30525

      Three years after these events took place, Surtain and Marshall were
apprehended in a burglary. Acting on information provided by Marshall, the
ATF initiated an investigation, during which ATF agents interviewed Samuels
about the life insurance policies he had obtained from James. Although he
sought to appear cooperative and provided some information about the murder,
Samuels told the agents, “I didn’t have any life insurance on [August].” The
agents knew this statement was false because they had obtained insurance
records showing that Samuels’s company had paid the premiums. Samuels
warned James that agents had interviewed him, and would likely seek to
interview James as well. He warned James not to “rat,” while at the same time
making the motion of pulling a gun trigger.
      The government later indicted Samuels, Moss, Surtain, and three other
co-defendants. While under indictment, Surtain spoke about his case to his
cellmate in St. Bernard Parish Jail, Orlando Brown. He told Brown, inter alia,
that his case involved arson and fraud; he was not worried about being convicted
because he had disposed of the gun he had used to commit his crime; he had not
been charged with murder; he had sent someone to pick up the murder victim;
he had “tussled with the guy and then he shot him”; he was not worried about
his child’s mother or her brother testifying against him because he knew at
which jail the brother was being housed; his case involved insurance; his child’s
mother and her brother were beneficiaries, but he was not a main beneficiary;
and “if everything went right,” he would be paid for his part in his crime. He also
stated that “they had a policy to get this guy, he was supposed to pick the guy
up on his birthday.” Insurance records established that August was murdered
the day before his twenty-seventh birthday. While he was incarcerated, Surtain
made two recorded phone calls—one to Samuels’s father and another to
Samuels. Surtain asked Samuels’s father to tell Samuels that he was
“dummying up all the way around,” and that it would be best if Samuels would

                                        8
     Case: 11-30525    Document: 00512187631      Page: 9   Date Filed: 03/26/2013



                                  No. 11-30525

also “dummy up.” In Surtain’s call to Samuels, they agreed not to cooperate with
investigators.
      After an eight-day trial, the jury found Surtain and Moss guilty of
conspiracy to commit mail and wire fraud, and use of fire to commit obstruction
of justice in relation to the van fire. Moss was also found guilty on one count of
use of fire to commit mail fraud in relation to the house fire. Samuels was found
guilty on all fifteen counts. Once again, these included one count of conspiracy
to commit mail and wire fraud, three counts of mail fraud, seven counts of wire
fraud, one count of use of fire to commit obstruction of justice, two counts of use
of fire to commit mail fraud, one count of making a false statement, and aiding
and abetting. 18 U.S.C. §§ 2, 371, 844(h)(1), 1001, 1341, 1343.
      Moss and Surtain were respectively sentenced to 420 months’ and 180
months’ imprisonment. Samuels was sentenced to 900 months’ imprisonment.
They timely appealed.
                               II. DISCUSSION
      On appeal, Surtain argues that the evidence was not sufficient to convict
him on Count 1 (conspiracy) and Count 12 (use of fire to commit obstruction of
justice). Moss also challenges his conviction on Count 12. Samuels raises a host
of issues on appeal, including multiplicity, evidentiary sufficiency, improper
testimony, failure to sever the defendants’ trial, prosecutorial misconduct, and
procedural unreasonableness of his sentence. We address each issue in turn.
A.    Surtain’s Conspiracy Conviction
      1.    Legal Standards
      By moving for a judgment of acquittal immediately after the government
rested, Surtain properly preserved his evidentiary sufficiency argument. Fed. R.
Crim. P. 29(a); United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007). A
challenge to the sufficiency of evidence supporting a criminal conviction is
reviewed de novo. United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).

                                        9
   Case: 11-30525     Document: 00512187631     Page: 10   Date Filed: 03/26/2013



                                 No. 11-30525

      “When reviewing the sufficiency of the evidence, this Court views all
evidence, whether circumstantial or direct, in the light most favorable to the
Government with all reasonable inferences to be made in support of the jury’s
verdict.” United States v. Moser, 123 F.3d 813, 819 (5th Cir. 1997). “[W]e
consider whether ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” United States v. Jara-Favela,
686 F.3d 289, 301 (5th Cir. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “The evidence need not exclude every reasonable hypothesis of innocence
or be completely inconsistent with every conclusion except guilt, so long as a
reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt.” Moser, 123 F.3d at 819.
      A conspiracy conviction under 18 U.S.C. § 371 requires proof beyond a
reasonable doubt of: “(1) an agreement between two or more persons to pursue
an unlawful objective; (2) the defendant’s knowledge of the unlawful objective
and voluntary agreement to join the conspiracy; and (3) an overt act by one or
more of the members of the conspiracy in furtherance of the objective of the
conspiracy.” United States v. Coleman, 609 F.3d 699, 704 (5th Cir. 2010).
      “A jury is free to infer the existence of a conspiracy from the presence,
association, and concerted action of the defendant with others.” United States v.
Curtis, 635 F.3d 704, 719 (5th Cir. 2011) (internal quotation marks and citation
omitted). Knowledge of the conspiracy’s unlawful objective “may be inferred from
surrounding circumstances.” United States v. Grant, 683 F.3d 639, 643 (5th Cir.
2012) (internal quotation marks and citation omitted).
      2.    Discussion
      Surtain’s evidentiary sufficiency challenge focuses on the second
conspiracy element. He argues the government failed to establish that he knew
August was to be murdered in furtherance of an insurance fraud scheme. We
disagree.

                                       10
    Case: 11-30525    Document: 00512187631      Page: 11    Date Filed: 03/26/2013



                                  No. 11-30525

      Insurance agent James’s testimony established the existence of a
conspiracy to obtain life insurance proceeds by murdering August. Samuels
initially asked his brother Chris to kill August. After Chris failed to do this,
Samuels twice called Surtain on the day of August’s murder. Other testimony
established that, on the night of August’s murder, Surtain obtained ammunition
from Marshall, was dropped off near the site of August’s murder, and later
returned to Marshall’s friend’s house with blood covering his clothes. He later
described the murder to Marshall. James testified that Samuels called him
shortly after August’s death to ask how to submit a life insurance claim.
      According to Surtain’s cellmate, Brown, Surtain said in jail that he would
not be arrested for a murder he had committed because he was not the “main”
or “prime” beneficiary of insurance policies on the murder victim’s life.
Significantly, Surtain told Brown that “they had a policy to get this guy.” He also
said that if everything went well, he would still get paid. The jury could have
inferred that Surtain was promised money for murdering August, and had been
told that the money would come from an insurance policy. This inference is
strengthened by the fact that Samuels showed his brother the fraudulent
insurance policy to induce him to kill August. The jury could have reasonably
inferred that Samuels also would have presented the insurance policy to Surtain
as proof of payment ability. The evidence thus was sufficient to establish that
Surtain knew the conspiracy’s objective was to commit insurance fraud. See
Jackson, 443 U.S. at 319.
      Surtain attacks Brown’s testimony on two grounds. First, he incorrectly
contends that the jury was not permitted to rely on Brown’s testimony because
evidence of Surtain’s extra-judicial statements was uncorroborated. We conclude
that “substantial independent evidence” justified reliance on Brown’s testimony.
United States v. Sterling, 555 F.3d 452, 456 (5th Cir. 2009). He accurately
related details of the conspiracy that Surtain had provided, and which

                                        11
     Case: 11-30525   Document: 00512187631      Page: 12   Date Filed: 03/26/2013



                                  No. 11-30525

corresponded with other evidence offered at trial. These included the nature of
the charges against Surtain, details of the murder, and Surtain’s lack of concern
that his “baby mama and her brother” would testify against him. Accordingly,
the jury could justifiably rely on Brown’s testimony respecting Surtain’s
jailhouse statements. See id. (federal courts do not apply the traditional corpus
delicti doctrine (citing Opper v. United States, 348 U.S. 84, 93 (1954))).
       Second, Surtain states in his brief that Brown “agreed that Mr. Surtain
had no knowledge of the insurance fraud prior to the death of Mr. August.” We
can find no record support for this assertion. Surtain also contends that
Marshall made the same representation. Although Marshall testified that
Surtain had not mentioned anything to him about an insurance scam, Marshall
never affirmatively stated that Surtain had no knowledge of the scam. Moreover,
it is unclear how Marshall might have obtained such knowledge.
B.     Surtain’s and Moss’s Use-of-Fire Convictions
       1.    Legal Standards
       Because Moss and Surtain preserved their evidentiary sufficiency
argument as to Count 12 (use of fire to commit obstruction of justice and aiding
and abetting), we apply de novo review, viewing all evidence in the light most
favorable to the verdict. McDowell, 498 F.3d at 312; Moser, 123 F.3d at 819. We
“must affirm if any reasonable construction of the evidence could establish the
defendant’s guilt beyond a reasonable doubt.” United States v. Booker, 334 F.3d
406, 409 (5th Cir. 2003) (internal quotation marks and citation omitted).
       A conviction under 18 U.S.C. § 844(h)(1) for use of fire to commit a felony
requires sufficient proof that the defendant (1) used fire (2) to commit a felony
that can be prosecuted in a court of the United States. United States v. Nguyen,
28 F.3d 477, 481 (5th Cir. 1994). A person commits obstruction of justice when
he “corruptly alters, destroys, mutilates, or conceals a record, document, or other



                                        12
    Case: 11-30525       Document: 00512187631          Page: 13     Date Filed: 03/26/2013



                                       No. 11-30525

object, or attempts to do so, with the intent to impair the object’s integrity or
availability for use in an official proceeding.” 18 U.S.C. § 1512(c)(1).
       The federal aiding and abetting statute provides that “[w]hoever commits
an offense against the United States or aids, abets, counsels, commands, induces
or procures its commission, is punishable as a principal.” 18 U.S.C. § 2. A
conviction under this provision requires sufficient proof that “the elements of the
substantive offense occurred and that the defendant associated with the criminal
venture, purposefully participated in the criminal activity, and sought by his
actions to make the venture succeed.” United States v. Garcia, 242 F.3d 593, 596
(5th Cir. 2001).
       2.     Discussion
       The government argues that Moss counseled Samuels to destroy the van,
which permitted Moss’s use-of-fire conviction on an aiding-and-abetting theory.1
18 U.S.C. § 2. It relies on evidence showing that (1) Moss had a strong motive to
destroy the murder evidence in the van; (2) Moss placed a five-minute phone call
to Samuels approximately five-and-a-half hours before the van was burned; and
(3) Moss was returning a call that Samuels had placed to Moss’s “burner” cell
phone, which had been used only in connection with criminal activity. As we will
discuss, the evidence was sufficient to convict Moss on Count 12.
       As outlined above, the trial evidence established that Moss had driven
August to the murder site in the van, and that Surtain had killed him. James
testified that Samuels told him he had cleaned blood out of the van shortly after
August’s murder. Because the blood could have linked all three defendants to




       1
         Although the district court gave the jury a co-conspirator liability instruction, it
specifically instructed the jury that the instruction applied only to Counts 2 through 11.
Accordingly, we will not consider co-conspirator liability with respect to Count 12. See United
States v. Crain, 33 F.3d 480, 486 n.7 (5th Cir. 1994) (citing Pinkerton v. United States, 328
U.S. 640, 645 (1946)).

                                              13
   Case: 11-30525     Document: 00512187631      Page: 14   Date Filed: 03/26/2013



                                  No. 11-30525

August’s murder and the related insurance fraud scheme, the jury could have
inferred that they had an overwhelming motive to destroy this evidence.
      Viewed in the light most favorable to the verdict, the phone calls from
Samuels’s phone show that he was urgently trying to contact Moss on the night
of the van fire. Moss had returned to Detroit on April 26, 2004. Samuels called
Moss’s cell phone at 9:23 PM on May 7th, then checked his voicemail. He called
Moss’s girlfriend four minutes later, and spoke with her for two minutes.
Immediately after this call, Samuels called a house near Detroit. Records showed
a call from Moss to his girlfriend at 9:30. Samuels called Surtain at 9:31. Moss
called Samuels’s house at 9:33, just after Samuels had returned home. The two
spoke for five minutes, and Samuels left immediately after the call ended.
Between Moss’s departure from New Orleans and that night, Samuels and Moss
had called each other four times—three times on the night Moss left for Detroit
(a one-minute call, and two calls in quick succession several hours later, lasting
seven seconds and fifty-five seconds), and once on May 1st (one minute).
      The phone at which Samuels first tried to reach Moss is also significant.
Phone records showed that Surtain and Samuels tended to call this phone—a
“burner” cell phone with an Indianapolis area code—only during periods when
they were involved in criminal activity in which Moss also participated,
including in the days leading up to August’s murder. The defendants further
highlighted this phone’s significance by denying their knowledge of the phone
or its connection to Moss. Surtain told investigators that the phone number was
associated with a woman he had met at the New Orleans Convention Center.
Although Moss’s ex-wife testified that Moss had used this phone to call her, he
told investigators he had no knowledge of the phone number associated with it.
He went so far as to deny having had any cell phone in April 2004, even though
Samuels made calls to his phone at that time. Viewed in the light most favorable



                                       14
    Case: 11-30525    Document: 00512187631       Page: 15   Date Filed: 03/26/2013



                                  No. 11-30525

to the verdict, Samuels’s calling this phone indicated that he wished to discuss
criminal activity with Moss.
      Moreover, the jury could have reasonably inferred that Moss was
Samuels’s go-to man for advice about incendiary devices. After all, Samuels had
summoned him from Detroit to New Orleans to burn down the Landry house.
True, the fact that Moss set his own hair on fire in that incident implies that
Samuels’s confidence in him might have been misplaced, but the point stands
that Samuels knew Moss to have experience with setting things on fire.
      Although the jurors did not know and could not have known with certainty
the content of the phone conversation, they hardly could have believed that
Samuels called Moss to discuss the weather. Samuels had not spoken with Moss
in days, yet he suddenly and urgently sought to contact Moss mere hours before
the van fire. Given the strong inference that they spoke about the van fire, and
Moss’s overwhelming motive to destroy the murder evidence, the jury could have
found beyond a reasonable doubt that Moss, at minimum, gave words of
encouragement to Samuels in violation of the federal aiding-and-abetting
statute. See United States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008) (“An aider
and abettor is liable for criminal acts that are the ‘natural or probable
consequence of the crime’ that he . . . encouraged.” (citation omitted)); United
States v. Bowen, 527 F.3d 1065, 1078 (10th Cir. 2008) (“Even mere ‘words or
gestures of encouragement’ constitute affirmative acts capable of rendering one
liable under this theory.” (citation omitted)).
      Moss argues that (1) the jury’s verdict “rest[ed] on mere suspicion,
speculation, or conjecture, or on an overly attenuated piling of inference on
inference,” United States v. Rojas Alvarez, 451 F.3d 320, 333 (5th Cir. 2006)
(citation omitted); (2) his conviction must be reversed because there is no
evidence of what he discussed with Samuels on May 7th; and (3) he could not
have abetted Samuels’s offense because Samuels had already resolved to destroy

                                        15
    Case: 11-30525    Document: 00512187631       Page: 16   Date Filed: 03/26/2013



                                  No. 11-30525

the van. See United States v. Powers, 168 F.3d 741, 746–47 (5th Cir. 1999);
United States v. Galvan, 693 F.2d 417, 419–20 (5th Cir. 1982); Grimes v. United
States, 379 F.2d 791, 795 (5th Cir. 1967). We disagree.
      “[W]hat the fact finder is permitted to infer from the evidence in a
particular case is governed by a rule of reason, and . . . fact finders may properly
use their common sense and evaluate the facts in light of their common
knowledge of the natural tendencies and inclinations of human beings.” United
States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (internal quotation marks and
citation omitted). “[C]ircumstances altogether inconclusive, if separately
considered, may, by their number and joint operation, especially when
corroborated by moral coincidences, be sufficient to constitute conclusive proof.”
Id. (quoting Coggeshall v. United States (The Slavers), 69 U.S. (2 Wall.) 383, 401
(1865)). Given Moss’s overwhelming motive to destroy the murder evidence, the
jury could have reasonably inferred that Moss sought to embolden Samuels in
this venture, even if only briefly during their five-minute conversation.
Samuels’s abruptly leaving his home after speaking with Moss—only minutes
after having arrived there—fits the narrative of a man who has just obtained
something he wanted or needed to accomplish his mission.
      Moreover, Moss’s reliance on Powers, Galvan, and Grimes is misplaced. In
each of those cases, we reversed a conviction that was based primarily on
evidence that a phone call or phone calls had taken place. Powers, 168 F.3d at
746–47; Galvan, 693 F.2d at 419–20; Grimes, 379 F.2d at 795. Moss argues that
these cases stand for the proposition that “telephone records are not, standing
alone, sufficient evidence to support a” conviction. United States v. Williams, 264
F.3d 561, 574 (5th Cir. 2001) (citing Powers, 168 F.3d at 746–47; Galvan, 693
F.2d at 419). The instant matter is distinguishable, however, because the
government offered more than “telephone records . . . standing alone.” There is
strong circumstantial evidence of what Moss and Samuels discussed, and the

                                        16
   Case: 11-30525     Document: 00512187631     Page: 17     Date Filed: 03/26/2013



                                 No. 11-30525

jury could have inferred from Moss’s overwhelming motive and Samuels’s
behavior after their phone call that Moss encouraged Samuels to destroy his van
at some point during their not all too brief conversation.
      Finally, Moss argues that he could not have helped the van fire to succeed
because Samuels had already decided to destroy the van: Samuels had increased
the van’s insurance coverage days before, and parked it away from the house
earlier that day. We agree that the evidence shows Samuels likely would have
destroyed the van even if he had not been able to contact Moss. Nonetheless,
conviction on an aiding-and-abetting theory does not require the defendant’s acts
to cause the criminal venture to succeed. It requires only association with the
criminal venture, purposeful participation therein, and an affirmative act meant
to make the venture succeed. Garcia, 242 F.3d at 596. There was sufficient proof
that Moss satisfied these elements.
      As for Surtain, he and Samuels called each other twenty-six times on May
7th, including shortly before midnight. Samuels called his girlfriend at 1:06 AM
and 1:12 AM on May 8th to ask if his van was okay; she said it was. Immediately
after the 1:12 phone call, Samuels called Surtain, and called him again at 1:22
AM. The van fire occurred at about 3:00 AM.
      Surtain dismisses the large volume of calls between him and Samuels as
a natural result of their relationship. Samuels was Surtain’s drug dealer and the
brother of his child’s mother. Using their common sense, however, the jurors
could have found that even ties as close as these did not explain the flurry of
phone calls on May 7th, and that it was no coincidence they occurred the day
before the van fire. Moreover, Samuels’s relationship with Surtain does not
explain why Samuels twice called Surtain just after he learned his van was still
intact. This, combined with Surtain’s strong motive to destroy the murder
evidence, permitted the jury reasonably to infer that Surtain had encouraged



                                       17
     Case: 11-30525    Document: 00512187631      Page: 18   Date Filed: 03/26/2013



                                   No. 11-30525

Samuels during their phone calls to destroy the van. Accordingly, we will not
reverse Surtain’s conviction on Count 12.
C.     Samuels’s Use-of-Fire Convictions
       Samuels argues that his two use-of-fire convictions and sentences that
arose from the van fire must be vacated as multiplicitous. Samuels contends that
a single fire cannot give rise to separate convictions under § 844(h)(1), even if
that fire facilitated separately chargeable offenses—in this case, mail fraud and
obstruction of justice. 18 U.S.C. §§ 1341, 1512(c)(1). As we will discuss, we will
vacate Samuels’s use-of-fire sentences because Congress did not clearly state its
intent to impose multiple punishments under § 844(h)(1) in the instant
circumstances.
       1.    Legal Standards
       Because Samuels did not raise a multiplicity objection before trial, he has
waived this challenge as to his use-of-fire convictions. See Fed. R. Crim. P.
12(b)(3)(B); United States v. Soape, 169 F.3d 257, 265–66 (5th Cir. 1999). He can
challenge the multiplicity of his sentences for the first time on appeal, however,
because they are to run consecutively to each other and to his other sentences,
and separate monetary assessments were imposed as to each conviction. See
United States v. Marroquin, 885 F.2d 1240, 1246 (5th Cir. 1989). We apply plain-
error review because Samuels raised no objection at sentencing. United States
v. Ogba, 526 F.3d 214, 232 (5th Cir. 2008).
       Section 844(h)(1) provides as follows:
       Whoever uses fire or an explosive to commit any felony which may
       be prosecuted in a court of the United States . . . including a felony
       which provides for an enhanced punishment if committed by the use
       of a deadly or dangerous weapon or device shall, in addition to the
       punishment provided for such felony, be sentenced to imprisonment
       for 10 years. In the case of a second or subsequent conviction under
       this subsection, such person shall be sentenced to imprisonment for
       20 years. Notwithstanding any other provision of law, . . . the term


                                        18
    Case: 11-30525    Document: 00512187631       Page: 19   Date Filed: 03/26/2013



                                  No. 11-30525

      of imprisonment imposed under this subsection [shall not] run
      concurrently with any other term of imprisonment including that
      imposed for the felony in which the explosive was used or carried.
      2.    Discussion
      “In general, ‘multiplicity’ is the charging of a single offense under more
than one count of an indictment.” Soape, 169 F.3d at 266. “The rule against
multiplicity is grounded in the Fifth Amendment’s prohibition against double
jeopardy . . . .” United States v. Buchanan, 485 F.3d 274, 278 (5th Cir. 2007)
(internal quotation marks and citation omitted). A multiplicity violation arises,
inter alia, when the government has impermissibly divided a single criminal act
or transaction into multiple violations, and separately charged each one under
the same provision. See id. at 278–79. Here, the government argues that a single
fire occasioned by Samuels permitted separate punishments under § 844(h)(1)
because it helped him to commit separately chargeable felonies.
      We confronted similar circumstances in United States v. Evans, 854 F.2d
56 (5th Cir. 1988), rev’g in part 848 F.2d 1352 (5th Cir. 1988). In Evans, the
defendant had presented false identification to obtain a firearm and ammunition
in a single transaction. 848 F.2d at 1354. She was convicted for two violations
of 18 U.S.C. § 922(a)(6), which prohibits exhibiting “false, fictitious, or
misrepresented identification” “in connection with the acquisition . . . of any
firearm or ammunition.” In addressing the defendant’s double jeopardy
challenge, we concluded that the dispositive question was whether Congress had
intended to “punish as two offenses the single making of one false statement in
connection with one purchase on the same occasion of both a firearm and
ammunition.” Evans, 854 F.2d at 58. This requires us to determine “[w]hat
Congress has made the allowable unit of prosecution.” Id. at 59 (quoting United
States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)). If the statutory
text and legislative history are not dispositive of Congress’s intent, we apply the


                                        19
    Case: 11-30525    Document: 00512187631       Page: 20   Date Filed: 03/26/2013



                                   No. 11-30525

rule of lenity, resolving the multiple-punishment question in the defendant’s
favor. Id. (citing Ladner v. United States, 358 U.S. 169, 177 (1958); Bell v. United
States, 349 U.S. 81, 84 (1955)).
      As set out above, § 844(h)(1) provides penalties for any person who “uses
fire or an explosive to commit any felony.” The government implicitly argues that
“use of fire” is the proper unit of prosecution, and that Congress thus intended
multiple punishments in Samuels’s circumstances. This interpretation is not
unreasonable; after all, Samuels “used fire” to commit mail fraud, and also “used
fire” to obstruct justice. Nonetheless, because the more lenient statutory
construction is no less plausible, we must apply the rule of lenity.
      In United States v. Phipps, 319 F.3d 177, 186–89 (5th Cir. 2003), the
government offered a similar interpretation with respect to 18 U.S.C. § 924(c)(1).
Section 924(c)(1) provides punishment for any person who “uses or carries a
firearm” “during and in relation to any crime of violence or drug trafficking
crime.” The defendant in Phipps had committed two violent crimes—carjacking
and kidnaping—through the single “use” of a firearm. 319 F.3d at 186. After
examining § 924(c)(1)’s text and legislative history, we held that Congress’s
intent as to the “unit of prosecution” was ambiguous, thus compelling us to apply
the rule of lenity. Id. at 187–88. Accordingly, we held that the applicable unit of
prosecution was “the use, carriage, or possession of a firearm during and in
relation to a predicate offense.” Id. at 186. Because § 844(h)(1)’s text parallels
that of § 924(c)(1) in relevant part, the applicable unit of prosecution would also
appear to be the pairing of a “use” and a “felony.” See Phipps, 319 F.3d at 186.
      The government argues that its interpretation is supported by § 844(h)(1)’s
requirement that punishment under that provision be served consecutively to
any term of imprisonment imposed for the underlying felony. Section 924(c)(1)
also imposes consecutive punishment, however, and we considered and rejected
the same argument in Phipps, 319 F.3d at 187. Although this requirement

                                        20
   Case: 11-30525     Document: 00512187631      Page: 21   Date Filed: 03/26/2013



                                  No. 11-30525

undoubtedly evinces an intent to impose harsh punishment for § 844(h)(1)
violations when they occur, it does not establish what constitutes a violation.
Because we perceive no other part of the statutory text that materially
distinguishes § 844(h)(1) from § 924(c)(1), we are not compelled to reach a result
different from the one we reached in Phipps.
      Nor does § 844(h)(1)’s legislative history provide relevant instruction. It
reveals only that Congress wished to discourage the widespread use of explosive
and incendiary devices to accomplish criminal objectives. As we explained in
Phipps, 319 F.3d at 187, such an expression of intent does not resolve the
ambiguity that confronts us. See Organized Crime Control Act of 1970, Pub. L.
No. 91-452, 84 Stat. 922, 957 (codified as amended in scattered sections of 18
U.S.C.); H.R. Rep. No. 91-1549 (1970), reprinted in 1970 U.S.C.C.A.N. 4007; see
also Anti-Arson Act of 1982, Pub. L. No. 97-298, 96 Stat. 1319 (adding “fire” to
18 U.S.C. § 844); H.R. Rep. No. 97-678 (1982), reprinted in 1982 U.S.C.C.A.N.
2631. Likewise, the legislative history of § 924(c)—the provision on which
§ 844(h) was originally modeled, H.R. Rep. No. 91-1549, at 69—does not answer
this question. See Phipps, 319 F.3d at 186–87 & n.6; Gun Control Act of 1968,
Pub. L. No. 90-618, 82 Stat. 1213, 1224 (codified at 18 U.S.C. § 921 et seq.); S.
Rep. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112.
      Further supporting our decision today, we held in United States v. Severns,
559 F.3d 274, 291 (5th Cir. 2009), that a single “fire incident” did not support
multiple sentences under § 844(h)(1), even when that fire furthered multiple
predicate offenses. In Severns, the government charged two § 844(h)(1) violations
after the defendant burned down her gun store in furtherance of one mail fraud
and one wire fraud offense. Analogizing the use-of-fire provision to § 924(c)(1),
we held that the defendant “may be prosecuted and punished for use of fire to
commit mail fraud or use of fire to commit wire fraud, but not both.” Severns,
559 F.3d at 291.

                                       21
    Case: 11-30525    Document: 00512187631      Page: 22    Date Filed: 03/26/2013



                                  No. 11-30525

      The government argues that Severns is inapposite because the underlying
mail and wire fraud offenses in that case were committed to achieve the same
objective—to obtain fire insurance proceeds from the gun store’s destruction. 559
F.3d at 276–77. It contends that Samuels’s distinct criminal objectives in
burning his van—to destroy evidence and fraudulently obtain insurance
proceeds—permit a different result. Based on our § 924(c)(1) caselaw, we cannot
accept this reasoning. In United States v. Walters, 351 F.3d 159, 161 (5th Cir.
2003), the defendant was convicted on two § 924(c)(1) charges for a single
bombing, the predicate offenses being assaulting the federal officer who had
opened the explosive package and damaging the federal building in which the
package was opened. 18 U.S.C. §§ 111, 844(f). We rejected the government’s
argument that “dual criminal purposes” supported multiple punishments under
§ 924(c)(1), and vacated the defendant’s sentences. Walters, 351 F.3d at 173
(citing Phipps, 319 F.3d at 183). In light of § 844(h) and § 924(c)(1)’s parallel
textual structures, the identical purpose motivating each provision’s enactment,
H.R. Rep. No. 91-1549, at 69, and our past reliance on the latter provision to
interpret the former, Severns, 559 F.3d at 291, we have ample reason to extend
the Walters court’s holding to the instant matter.
      Thus, applying the rule we articulated in Evans, 854 F.2d at 59, and
reiterating our decision in Severns, 559 F.3d at 291, we hold that it was error to
impose multiple sentences under § 844(h)(1) based on a single “fire incident” that
facilitated two underlying felonies. That Samuels had multiple criminal
objectives in causing the fire does not alter this result.
      3.    Plain-Error Review
      Having held that it was error to impose a sentence on each of Counts 12
and 13, we must now determine whether this error was plain, and whether to
correct it. To establish plain error, Samuels must show that “(1) there is error;
(2) the error was clear and obvious, not subject to reasonable dispute; and (3) the

                                        22
     Case: 11-30525   Document: 00512187631      Page: 23    Date Filed: 03/26/2013



                                  No. 11-30525

error affected his substantial rights.” United States v. Hebron, 684 F.3d 554, 558
(5th Cir. 2012). We may “remedy the error, but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.
       Whether an error is “clear and obvious” depends on the clarity of
applicable law. See United States v. Meza, 701 F.3d 411, 434 (5th Cir. 2012)
(vacating the defendant’s multiplicitous sentences sua sponte because the error
was “clear in light of” controlling authority). “[T]he focus of plain error review
should be whether the severity of the error’s harm demands reversal, and not
whether the district court’s action . . . deserves rebuke.” United States v.
Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (citation omitted).
We have found plain error when there was “no relevant distinction[]” between
the case at bar and controlling precedent. Meza, 701 F.3d at 433.
       The government has correctly noted that the facts in Severns are
somewhat different from those present in the instant matter. We think, however,
that this difference is so slight, the controlling rule in Severns so clear, the
weight of Walters so one-sided, and an expression of legislative intent supporting
the government’s position so lacking, that the decision we have reached today
was all but certain. Moreover, this error severely affects Samuels’s substantial
rights. Our view of his conduct in this matter notwithstanding, we cannot allow
an additional twenty-year term of imprisonment to be imposed when controlling
authority so clearly establishes its illegality. Accordingly, we will vacate his
sentences on Counts 12 and 13, remand for dismissal of one of these counts (at
the election of the government), and order resentencing. Meza, 701 F.3d at 434.
We deem the conviction on the remaining count affirmed. See id.
D.     Samuels’s Mail Fraud Convictions
       1.    Legal Standards
       Samuels argues there was insufficient evidence to support his mail fraud
convictions under Counts 3 and 4. He contends that the mailings underpinning

                                        23
    Case: 11-30525     Document: 00512187631      Page: 24    Date Filed: 03/26/2013



                                   No. 11-30525

these convictions were not made in furtherance of the life insurance fraud.
Although Samuels moved for acquittal at the close of the government’s evidence,
he did not renew this motion at the close of his defense. In these circumstances,
we review for plain error. United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.
2000) (per curiam). On plain-error review, an evidentiary insufficiency challenge
“will be rejected unless the record is devoid of evidence pointing to guilt or if the
evidence is so tenuous that a conviction is shocking.” United States v. Delgado,
672 F.3d 320, 330–31 (5th Cir. 2012) (en banc) (citation omitted).
      A mail fraud conviction under 18 U.S.C. § 1341 requires sufficient proof
that: “(1) the defendant devised or intended to devise a scheme to defraud,
(2) the mails were used for the purpose of executing, or attempting to execute,
the scheme, and (3) the falsehoods employed in the scheme were material.”
United States v. Ratcliff, 488 F.3d 639, 643–44 (5th Cir. 2007). “One ‘causes’ the
mails to be used ‘[w]here one does an act with knowledge that the use of the
mails will follow in the ordinary course of business, or where such use can
reasonably be foreseen.’” United States v. Ingles, 445 F.3d 830, 835 (5th Cir.
2006) (alterations in original) (quoting Pereira v. United States, 347 U.S. 1, 8–9
(1954)). The material that has been mailed need not be “fraudulent in itself.”
United States v. Shively, 927 F.2d 804, 814 (5th Cir. 1991) (citation omitted). Our
decisions construing the wire fraud statute are equally applicable to matters
involving the mail fraud statute. United States v. Mills, 199 F.3d 184, 188 (5th
Cir. 1999) (citing Carpenter v. United States, 484 U.S. 19, 25 n.6 (1987)).
      2.     Discussion
      The mailings underlying Counts 3 and 4 were related to the life insurance
scheme. The government offered evidence that the insurance company sent a
letter to Samuels’s mother—the other beneficiary on the policy—informing her
that her claim had been denied. The insurance company then mailed a premium
refund check to Samuels and his mother. Samuels concedes the fact of these

                                         24
    Case: 11-30525    Document: 00512187631       Page: 25   Date Filed: 03/26/2013



                                  No. 11-30525

mailings, and does not deny that he knew mailings would take place after he
applied for the policy. He argues instead that these mailings did not advance the
scheme’s objective.
      Undeniably, Samuels’s life insurance fraud scheme failed. Because
Samuels had not disclosed August’s history of drug use or his past treatments
for gunshot wounds on the insurance application, the insurance company denied
coverage and refunded the premiums. Thus, the mailings we have described do
not, on their face, appear to have furthered the scheme.
      Significantly, the mail fraud statute does not require the fraudulent
scheme to be successful. Adjmi v. United States, 346 F.2d 654, 657 (5th Cir.
1965); see also United States v. Loney, 959 F.2d 1332, 1337 n.14 (5th Cir. 1992)
(wire fraud). We have held that once a defendant obtains money from a fraud,
“actions taken to avoid detection” advance the fraudulent scheme because they
“allow the perpetrator to escape apprehension.” United States v. Allen, 76 F.3d
1348, 1363 (5th Cir. 1996) (wire fraud). To be sure, inasmuch as the mailings at
issue did not help Samuels obtain life insurance proceeds, they failed to advance
the scheme. But these mailings helped Samuels in a different way—they gave
Samuels notice of whether he should continue to seek proceeds by filing his own
claim as the second beneficiary. In an apparent effort to determine whether his
scheme would actually work, Samuels did not file his claim at the same time as
his mother’s. Because his mother’s claim was denied, he declined to file his own
claim, thus making it less likely that he would be investigated and discovered.
Samuels argues that a mail fraud conviction cannot rest on a mailing whose
“only likely effect . . . would be to further detection of the fraud or to deter its
continuation.” United States v. LaFerriere, 546 F.2d 182, 187 (5th Cir. 1977). As
we have discussed, however, the government makes a colorable argument that
the mailings at issue helped Samuels avoid detection.



                                        25
     Case: 11-30525   Document: 00512187631      Page: 26   Date Filed: 03/26/2013



                                  No. 11-30525

       Assuming, arguendo, that “Plan B” mailings—i.e., mailings notifying a
would-be fraudster that he should end a well-advanced scheme so that he can
avoid detection and apprehension—are not “incident to an essential part of the
scheme” under our prior decisions, we cannot say it was plain error not to acquit
Samuels on this basis. See Ingles, 445 F.3d at 835; Allen, 76 F.3d at 1363. He
offers no decision by this or any other court squarely holding that “Plan B”
mailings cannot support a mail fraud conviction, nor does he cite any decision
that makes such a holding inevitable. Because the challenge Samuels raises is
thus “subject to reasonable dispute,” Hebron, 684 F.3d at 558, and because the
record is not “devoid of evidence pointing to guilt,” Delgado, 672 F.3d at 331, we
will not reverse Samuels’s mail fraud convictions.
E.     Brown’s Testimony
       Samuels argues that the district court plainly erred by allowing Brown
(Surtain’s cellmate) to offer incriminating testimony against him. As discussed
above, Brown testified that Surtain had told him: (1) He would not be found
guilty because he disposed of the gun used in the murder; (2) he was not worried
that “his baby mama and her brother” would testify against him because he
could “get to” the brother; and (3) he was not concerned about being connected
to the insurance fraud because he was not “a main beneficiary on the policies,”
although the person “that was in St. Charles [Parish Jail]” was a beneficiary.
       Samuels contends that, although his name was not explicitly mentioned
in these statements, they nevertheless implicated him in Surtain’s crimes
because he was the person referred to as the “brother” and the person “in St.
Charles.” Samuels further asserts that this testimony amounted to inadmissible
hearsay, and violated his rights to confrontation, due process, and a fair trial.
Samuels concedes that plain-error review applies. United States v. Vargas-Soto,
700 F.3d 180, 182 (5th Cir. 2012).



                                       26
    Case: 11-30525       Document: 00512187631          Page: 27     Date Filed: 03/26/2013



                                       No. 11-30525

       Because the statements at issue are nontestimonial, we reject Samuels’s
Confrontation Clause argument. See Davis v. Washington, 547 U.S. 813, 825
(2006)     (statements     made     by    one      prisoner   to   another     are   “clearly
nontestimonial”). “[A] statement that is not testimonial cannot violate the
Confrontation Clause.” Brown v. Epps, 686 F.3d 281, 286 (5th Cir. 2012)
(alteration in original) (citation omitted); see also Davis, 547 U.S. at 823–24.
       Samuels also argues that the admission of Brown’s statements violated his
rights to due process and a fair trial because Brown’s testimony was “unreliable”
and “extremely prejudicial.” Samuels relies on Bruton v. United States, 391 U.S.
123, 126 (1968), in which the Supreme Court held that a non-testifying co-
defendant’s confession inculpating the other defendant was inadmissible at their
joint trial.2 Samuels ignores that the Bruton rule “is a narrow one that applies
only to statements that directly implicate the defendant without reference to
other admissible evidence.” United States v. Jimenez, 77 F.3d 95, 98 (5th Cir.
1996). In other words, we have consistently held that Bruton “is not violated
unless a co-defendant’s statement directly alludes to the complaining defendant.”
United States v. Espinoza-Seanez, 862 F.2d 526, 534 (5th Cir. 1988) (citation
omitted) (collecting cases). Indirect references do not implicate Bruton. Id.
       Here, Brown’s testimony does not directly implicate Samuels as a
participant in the criminal activity for which he was convicted. Brown’s first
statement—that Surtain admitted to disposing of the gun—does not implicate
Samuels at all. Additionally, Surtain’s comment that he could “get to” Samuels,
whom he did not mention by name, suggests only that Surtain was concerned
that Samuels might serve as a witness against him, not that Samuels was
himself a participant in the criminal scheme. Similarly, Surtain did not name


       2
        Although Samuels characterizes this as a due process and fair trial issue, we note that
Bruton properly is understood to be a Confrontation Clause case. Regardless, as we explain,
we find no error under Bruton.

                                              27
   Case: 11-30525     Document: 00512187631     Page: 28   Date Filed: 03/26/2013



                                 No. 11-30525

Samuels as the beneficiary of the insurance policy; rather, Samuels himself
admitted this in his opening statement.
      In any event, we note also that Bruton has been further limited “to cases
where the admission of the incriminating statements was not within a firmly
rooted exception to the hearsay rule.” United States v. Saks, 964 F.2d 1514, 1525
(5th Cir. 1992). We recently addressed whether a hearsay exception applies in
circumstances analogous to those present here. United States v. Ebron, 683 F.3d
105, 132–34 (5th Cir. 2012). In Ebron, two prisoners (Mosley and Ebron) were
alleged to have murdered a fellow inmate. Id. at 120–21. A third prisoner
(Bailey) testified at Ebron’s trial that, while Mosley and Bailey were cellmates,
Mosley admitted to him that he and Ebron had committed the murder. Id. at
132–33. On appeal, Ebron maintained that although the statement qualified as
a statement against penal interest under Federal Rule of Evidence 804(b)(3) as
to Mosley, its admission against Ebron was improper. Id. at 133. We rejected
Ebron’s argument, however, concluding that “[u]nlike the situation where a
declarant implicates himself and the defendant in a statement made to officials,
a statement made outside a custodial context does not provide the same set of
incentives that create the risk of an unreliable statement.” Id. The same is true
here. Thus, contrary to Samuels’s argument, the district court did not err in
admitting Brown’s challenged testimony, as the statements at issue qualify
under the hearsay exception for statements against penal interest.
      For these reasons, we reject Samuels’s contention that the district court
plainly erred in admitting Brown’s testimony. Further, even were we to accept
that the court erred, we conclude that Samuels still could not prevail on plain-
error review because he is unable to demonstrate that this purported error
affected his substantial rights. Even absent the complained-of statements, the
evidence of Samuels’s guilt was overwhelming.



                                       28
     Case: 11-30525   Document: 00512187631      Page: 29   Date Filed: 03/26/2013



                                  No. 11-30525

F.     Trial Severance
       Samuels argues that the district court should have severed his trial from
that of Moss and Surtain. He did not move for severance at trial, and did not join
in his co-defendants’ multiple, unsuccessful motions to sever. Samuels thus
contends on appeal that the court should have severed the proceedings sua
sponte even though it repeatedly denied his co-defendants’ severance motions.
       A defendant must move for severance before trial, or show good cause for
failing to do so. Fed. R. Crim. P. 12(b)(3)(D), 14(a). Because Samuels has done
neither, he has waived this argument. United States v. Cantu-Ramirez, 669 F.3d
619, 624 (5th Cir. 2012).
G.     Prosecutorial Misconduct
       Samuels argues that the prosecutors’ conduct rendered his trial
fundamentally unfair. He raises three misconduct issues on appeal, contending
that the prosecutors (1) repeatedly and improperly asked leading questions;
(2) made improper remarks in their closing and rebuttal arguments; and
(3) misused a summary witness to recapitulate earlier witnesses’ testimony.
       In deciding a claim of prosecutorial misconduct, we first “assess whether
the prosecutor made an improper remark. If the prosecution has made an
improper remark, we must then ask whether the defendant was prejudiced.”
Ebron, 683 F.3d at 140 (internal citation omitted). Although we usually consider
each remark individually, “[t]here may be instances where improper statements,
which are not individually prejudicial enough to require reversal, could cumulate
to affect the defendant’s substantial rights. However, such instances are rare in
this circuit.” Id. (internal quotation marks and citation omitted). “In considering
whether prosecutorial misconduct warrants reversal, the determinative question
is whether the prosecutor’s remarks cast serious doubt on the correctness of the
jury’s verdict.” Delgado, 672 F.3d at 334–35 (internal quotation marks and
citation omitted).

                                        29
    Case: 11-30525    Document: 00512187631      Page: 30    Date Filed: 03/26/2013



                                  No. 11-30525

      1.    Leading Questions
      Federal Rule of Evidence 611(c) provides that “[l]eading questions should
not be used on direct examination except as necessary to develop the witness’s
testimony. Ordinarily, the court should allow leading questions: (1) on cross-
examination; and (2) when a party calls a hostile witness, an adverse party, or
a witness identified with an adverse party.” Samuels offers fourteen instances
of purportedly improper questioning by the prosecutors, and contends that their
cumulative effect was to render his trial fundamentally unfair.
      Although it cannot be denied that the prosecutors repeatedly asked
leading questions, and that the court admonished them again and again,
Samuels has not established that such questioning “cast serious doubt on the
correctness of the jury’s verdict.” Delgado, 672 F.3d at 334–35 (citation omitted).
As to most of the instances that Samuels cites, he does not explain how prejudice
resulted; ignores that other, properly elicited testimony established the facts he
sought to suppress; or fails to mention that the court stopped the improper
questioning before the witness responded. Even assuming that the remaining
occurrences prejudiced Samuels in some measure, he does not explain whether
or how they materially affected the jury’s verdict.
      Samuels calls our attention to judicial statements respecting the harm
that leading questions can cause. United States v. Durham, 645 F.3d 883, 891
(7th Cir. 2011) (“[V]alid concerns regarding the overuse of leading questions
exist.”); Stine v. Marathon Oil Co., 976 F.2d 254, 266 (5th Cir. 1992) (“[A]ny good
trial advocate who is allowed leading questions can both testify for the witness
and argue the client’s case by the use of leading questions.”); United States v.
McGovern, 499 F.2d 1140, 1142 (1st Cir. 1974) (leading questions “may supply
a ‘false memory’” in a friendly witness (citation omitted)). However, he offers no
analogous case—indeed, he offers no case at all—in which a judgment of
conviction has been reversed based on leading questions. We do not suggest that

                                        30
   Case: 11-30525     Document: 00512187631      Page: 31   Date Filed: 03/26/2013



                                  No. 11-30525

leading questions never cause reversible error. Before we will grant appellate
relief, however, we must be convinced that such questions affected a defendant’s
substantial rights. Ebron, 683 F.3d at 140. Samuels has not convinced us of this.
      2.    Prosecutors’ Closing and Rebuttal Arguments
      Samuels further contends that, during the prosecutors’ closing and
rebuttal arguments, they (1) argued facts that were not in evidence and misled
the jury, (2) improperly vouched for government witnesses, and (3) improperly
attacked the defendants and defense counsel. Because Samuels did not object to
the purportedly improper statements, we review for plain error. Id. at 141.
            a.    Facts not in Evidence
      In discussing Samuels’s role in the Landry house fire, the prosecutor
stated: “And you recall Mr. Samuels who testified, obviously, before lunch,
talking about this is some kind of an electrical fire. . . . But you see, con men,
they think they can convince people. That was an arson.” Samuels contends that
he never offered such testimony. In fact, Samuels testified that Landry had
burned down his own house and blamed faulty electrical wiring. The prosecutor
thus appears to have misunderstood or misremembered Samuels’s testimony in
a way that made Samuels appear to be dishonest. This mistake did not affect the
integrity of the proceedings, however. As we will explain, witness credibility was
a main point of contention in closing arguments, and ample evidence permitted
the jury to infer that Samuels had offered false testimony.
      In discussing the van fire, the prosecutor stated that a New Orleans fire
investigator said the van had been moved away from Samuels’s house to keep
the house from catching fire and to place the van in full view of the security
camera, thus aiding his alibi. As Samuels concedes, the investigator testified
that the security camera captured the arson on tape, and that the house would
have been damaged if the van had been parked closer to it. Although it is true
that the investigator did not say these were Samuels’s reasons for parking the

                                       31
    Case: 11-30525     Document: 00512187631      Page: 32    Date Filed: 03/26/2013



                                   No. 11-30525

van where he did, the jury could have made this reasonable inference based on
the investigator’s testimony.
      On rebuttal, the prosecutor criticized Samuels for allowing Surtain—his
sister’s ex-boyfriend—to live in his apartment even though his sister bore ill will
toward him following their break-up. The government thus suggested that
Samuels would not have permitted Surtain to stay with him but for Surtain’s
assistance in August’s murder. Samuels contends that none of the trial evidence
revealed Maria Samuels’s feelings about her relationship with Surtain. However,
Samuels’s cross-examination testimony established that Maria’s relationship
with Surtain ended, and that she gave their baby to her parents. Samuels sought
to justify his continuing relationship with Surtain by noting that Surtain
remained his niece’s father. Accordingly, although the prosecutor’s rebuttal
statement did not perfectly characterize the evidence, neither was it unfairly
prejudicial.
      Finally, the prosecutor sought to discredit Samuels’s alibi—his presence
at church while Moss and Surtain were dealing with August—by stating that
“[t]his guy went to church for the first time in [his] life, while this guy drove his
van to lure him out so he could be killed.” In the context of the entire proceeding,
a reasonable jury would have recognized that this statement was not meant to
represent facts in evidence. Samuels’s apparent modus operandi throughout the
events recounted at trial was to establish alibis to distance himself from the
crimes he had planned: He was at a church service while Surtain was killing
August, was away from his home while others set his van on fire, and had
instructed Landry to visit a client while Moss was setting fire to his house.
Further, he appeared to play up his involvement in church activities—he
testified that his great, great grandfather had founded the church, and that he
had reminded his mother to retrieve a robe they were to give their minister.
Accordingly, a reasonable juror would have recognized the prosecutor’s

                                         32
    Case: 11-30525    Document: 00512187631      Page: 33   Date Filed: 03/26/2013



                                  No. 11-30525

hyperbolic statement as an attack on Samuels’s credibility. See Ebron, 683 F.3d
at 143 (“[T]he use of colorful pejoratives is not improper.”).
            b.     Vouching
      Samuels contends that the prosecutor improperly vouched for government
witnesses’ credibility, including that of ATF agents Robert Stoltz and Wyatt
Evans, and Samuels’s cooperating co-defendants. “[A] personal assertion by a
prosecutor of a government witness’s credibility is impermissible.” United States
v. Gracia, 522 F.3d 597, 601 (5th Cir. 2008). Personal vouching does not
necessarily constitute reversible error, however. “The test for improper vouching
for the credibility of a witness is whether the prosecutor’s expression might
reasonably lead the jury to believe that there is other evidence, unknown or
unavailable to the jury, on which the prosecutor was convinced of the accused’s
guilt.” United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010) (internal
quotation marks and citation omitted).
      As to Stoltz and Evans, the prosecutor stated:
      And these two phenomenal agents, Bobby Stoltz and Wyatt Evans,
      they went backwards. They went to the Augusts. “Hmm, insurance.
      Let’s dig a little deeper.” That led to Stefan James, and that led to
      this prosecution. Just phenomenal work that you saw over the last
      week. . . . [W]e put on a compelling case, thanks to those two
      gentlemen right here.
Samuels argues that the prosecutor thus “wrapp[ed] his witnesses in the
government’s cloak of veracity and invok[ed] his personal status as the
government’s attorney to assure the jury of the credibility of those agents.”
Gracia, 522 F.3d at 606–07. We disagree. The prosecutor’s comments that Stoltz
and Evans were “phenomenal” and did “phenomenal work” appear to have been
based on his description of their investigation. Further, he did not specifically
refer to their credibility as witnesses. Accordingly, we do not believe that a jury




                                        33
   Case: 11-30525     Document: 00512187631      Page: 34    Date Filed: 03/26/2013



                                  No. 11-30525

indisputably would have believed the prosecutor’s comments were based on
evidence not offered at trial. See McCann, 613 F.3d at 495.
      As to the cooperating witnesses, the prosecutor stated in rebuttal:
      Why in the world would someone come in and tell the truth about
      themselves, go in and plead guilty before this Court, be facing an
      enormous amount of penalties, and then start lying about somebody
      else? In hopes – in hopes – that they can bamboozle the judge who
      will then say, “If the government gets bamboozled, oh, I’m going to
      grant a reduction.” It makes no sense.
      ***
      Well, you put yourself in all those witnesses’ shoes with these
      cowboys, with these dudes, and you decide whether or not you are
      at risk.
      Orlando [Brown], who will be in jail for a long time; Stefan [James],
      who will be in jail for a long time; Damian [Landry], who will be in
      jail for a long time; the family members, your family members, your
      wife, your brother, your aunt. You decide whether or not there is
      any risk, if it’s all cotton. That you have the hope, maybe, hopefully,
      that a judge will give you a decent sentence versus whether or not
      these guys will.
Although a prosecutor “cannot express a personal opinion on the credibility of
witnesses,” he or she “may argue fair inferences from the evidence that a witness
has no motive to lie.” Gracia, 522 F.3d at 601. From the above statements, we
perceive no personal vouching for the cooperating witnesses’ credibility. In each
of these statements, the government fairly implied, based on record evidence,
that the witnesses had strong motives not to lie. Moreover, the prosecutor made
these comments on rebuttal to counter specific attacks defense counsel had made
on the witnesses’ credibility. Bolstering is permitted in such circumstances.
McCann, 613 F.3d at 495.
      Relying on one of our previous cases, Samuels nevertheless argues that
reversible error occurred. In Gracia, four of the prosecutor’s statements were at
issue: (1) He stated that border patrol agents who had testified at trial were


                                        34
   Case: 11-30525     Document: 00512187631      Page: 35   Date Filed: 03/26/2013



                                  No. 11-30525

“very, very credible”; (2) he asked the jury whether an agent “who has worked
as a law enforcement agent for many years, that is his career, that is his chosen
life, a man from this area, a man with a family . . . would throw all that away by
taking this stand and taking an oath and lying to you to get Mr. Gracia”; (3) he
urged the jury “to respect [the agents’] efforts as law enforcement officials and
to believe the testimony that they offered”; and (4) he stated that “to acquit
Gracia, [the jury] would have to believe that the agents ‘got out of bed’ on the
day they arrested Gracia and decided that this was ‘the day that [they] were
going to start [a] conspiracy to wrongfully convict Mr. Gracia.’” 522 F.3d at 600
(third and fourth alterations in original). On plain-error review, we reversed the
defendant’s conviction because each of these statements urged conviction based
on “something uniquely within the prosecutor’s knowledge.” Id. at 601. As we
have discussed, however, the prosecutor in the instant matter made fair
inferences respecting the witnesses’ credibility, and referred to the record
evidence on which his statements were based. Accordingly, Samuels’s reliance
on Gracia is misplaced.
            c.    Character Attacks
      Samuels argues that the prosecutors improperly called him a “con man”
and a “liar,” and made inappropriate remarks about defense counsel:
      But you see, con men, they think they can convince people.
      ***
      You see, all that was designed to do, Mr. Con Man, you see, it’s a
      preemptive strike . . . .
      They have lied every chance that they got so that they can try to
      bamboozle you.
      ***
      [Defense counsel] forgot to talk about [Samuels’s] performance up
      there. Because you had the opportunity to listen to two hours of
      fabrication. It’s a pathological liar. A guy that had an answer, and


                                       35
    Case: 11-30525    Document: 00512187631       Page: 36    Date Filed: 03/26/2013



                                  No. 11-30525

      a bad answer, for everything. Even when he looked at himself
      telling the 1,001 lie[s] to the agents in April of 2009 . . . . He can’t
      keep a story straight . . . .
      And that’s the benefit of you being able to watch somebody on the
      witness stand. Because you really did get to see a master – I’m not
      saying he’s not a master. But you got to see a pathological liar.
      ***
      He can connive.
The prosecutor also attacked defense counsel’s arguments as “defense lawyer
myths” and “ultimate lawyering.”
      “A prosecutor may not go beyond the evidence and attack a defendant’s
character or veracity.” Delgado, 672 F.3d at 336. In the instant matter, the
government relied heavily on cooperating witnesses’ testimony, and Samuels’s
defense hinged on the testimony he offered to establish that the government had
gotten the wrong man. Witness credibility thus became a point of contention in
both sides’ closing arguments; defense counsel attacked government witnesses’
truthfulness just as much as the government attacked Samuels’s.
      As we have recently discussed, “[i]mproper assertion of a prosecutor’s
personal opinion is easily recognized. . . . [I]t includes personal expressions such
as ‘I think,’ ‘I know,’ ‘I believe,’ or other expressions that either explicitly or
implicitly convey the prosecutor’s personal impressions.” Id. at 336–37 (internal
quotation marks and citations omitted). The prosecutor in the instant matter did
not employ such phrases or otherwise squarely imply that he was offering
credibility assessments not based on trial evidence. Indeed, each of the
purportedly improper statements Samuels cites was couched in evidence that
tended to show he had lied or sought to mislead others on specific occasions.
“While the prosecutor should have chosen his words more carefully, his
argument differs from improper argument in that its meaning and effect would




                                        36
   Case: 11-30525     Document: 00512187631     Page: 37   Date Filed: 03/26/2013



                                 No. 11-30525

have been no different had he simply added the words ‘As I’ve explained, the
evidence shows’ before stating that [Samuels] had lied.” Id. at 337.
      The prosecutor’s comments about “defense lawyer myths” and “ultimate
lawyering” were also made in the context of a battle over witness credibility.
Fairly construed, these were attacks on defense counsel’s arguments, not
personal attacks against the defendants’ attorneys. Accordingly, these comments
were not improper.
      On plain-error review, we cannot say that the prosecutor’s comments in
closing and rebuttal arguments affected Samuels’s substantial rights or “cast
serious doubt on the correctness of the jury’s verdict.” Ebron, 683 F.3d at 140
(citation omitted); Delgado, 672 F.3d at 334–35. Accordingly, we will not reverse
Samuels’s convictions on this basis.
      3.    Summary Witness Testimony
      The government’s final witness was New Orleans police detective and ATF
task force officer Robert Stoltz. Much of his testimony concerned the records of
phone calls from, to, and between the defendants. Samuels argues that the
government improperly used Stoltz’s testimony to recapitulate earlier
government witnesses’ testimony, in effect offering a “supplemental closing
argument.” He notes five instances in which Stoltz testified that earlier
witnesses had confirmed their association with certain phone numbers or
discussed the timing of certain calls.
      Samuels also complains that the government asked ATF agent Wyatt
Evans about Damian Landry’s testimony respecting money he said he had given
Samuels. Evans testified that Landry had not said he gave Samuels insurance
money, but had instead given Samuels money from his tax refund.
      The evidentiary rule respecting summary witnesses “does not contemplate
summarization of live testimony presented in court.” United States v. Nguyen,
504 F.3d 561, 572 (5th Cir. 2007) (citation omitted). “Summary witnesses may

                                         37
     Case: 11-30525      Document: 00512187631        Page: 38     Date Filed: 03/26/2013



                                      No. 11-30525

not be used as a substitute for, or a supplement to, closing argument.” Id.
(internal quotation marks and citation omitted).
       Assuming, arguendo, that these witnesses’ recapitulation of prior
testimony constituted error, we do not agree that it affected Samuels’s
substantial rights or “seriously affect[ed] the fairness, integrity, or public
reputation of” his trial. Hebron, 684 F.3d at 558. The witnesses made minor
references to other witnesses’ statements; this made up a trifling part of their
overall testimony. Their testimony thus did not constitute “supplemental closing
arguments,” and reversal is not justified on this basis.
H.     Samuels’s Sentence
       Samuels also argues that his sentence was procedurally unreasonable and
violated his Sixth Amendment right to trial by jury and Fifth Amendment right
to due process. Specifically, he contends that although he was not charged with,
and the jury did not find him guilty of, August’s murder, his offense level under
the Sentencing Guidelines was driven primarily by this supposedly unproven
offense conduct.3 Because Samuels did not raise this objection at sentencing, we
review his sentence for plain error. United States v. Peltier, 505 F.3d 389, 392
(5th Cir. 2007).
       Although Samuels was initially sentenced to 900 months’ imprisonment,
we have ordered that his sentences on Counts 12 and 13 be vacated on
multiplicity grounds, and that a sentence be imposed as to only one of these


       3
         Samuels further contends that he could not fully defend himself because substantial
evidence was washed away by Hurricane Katrina. Samuels does not elaborate on what
“substantial evidence” was lost, and his record citations are uninstructive or irrelevant.
        He also argues that because he was not charged with August’s murder after New
Orleans police investigated the matter, there must not have been enough evidence to support
a murder conviction. We are not concerned with what evidence was available to New Orleans
police at that time, nor what evidence would be required for a murder conviction under
Louisiana law. Samuels ignores that the trial evidence presented in the instant matter
overwhelmingly proved that, as alleged in the superseding indictment, he had August killed
for insurance money.

                                            38
   Case: 11-30525     Document: 00512187631     Page: 39   Date Filed: 03/26/2013



                                 No. 11-30525

counts. The sentences we have vacated (and the sentence that must be
reimposed on remand) are mandatory and inflexible, and are to be served
consecutively to any other term of imprisonment. 18 U.S.C. § 844 (h)(1). Because
Samuels’s challenge essentially goes to his Guidelines offense level, which was
not affected by his convictions or sentences on Counts 12 and 13 (and thus is not
affected by our mandate respecting these counts), we will address his Guidelines
argument in the interest of judicial efficiency. See United States v. Magdaleno-
Sanchez, 169 F. App’x 830, 831 (5th Cir. 2006) (unpublished) (per curiam)
(addressing Guidelines argument “in the interest of judicial efficiency and to
provide guidance on remand” even though the defendant’s sentence had already
been vacated on other grounds). We conclude that no error arose from Samuels’s
sentence.
      Samuels correctly notes that he was not separately charged with murder
in this matter. He was, however, convicted of conspiracy to commit mail and wire
fraud under Count 1. The government alleged in that count that Samuels
fraudulently obtained insurance on August’s life and then had him murdered,
and offered ample evidence proving as much. The district court thus applied
§ 2B1.1(c)(3) of the Sentencing Guidelines, which provides that where “the
defendant was convicted under a statute proscribing false, fictitious, or
fraudulent statements or representations generally . . . [and] the conduct set
forth in the count of conviction establishes an offense specifically covered by
another guideline in Chapter Two (Offense Conduct), [the court should] apply
that other guideline.” U.S.S.G. § 2B1.1(c)(3) (2010).
      The district court then correctly applied § 2A1.1 (First Degree Murder),
the practical effect of which was a twenty-one-step increase in Samuels’s offense
level. His Criminal History Category of IV and offense level of forty-seven
rendered an advisory Guidelines sentencing range of life imprisonment. Absent
§ 2A1.1’s application, and assuming that no further adjustments would have

                                       39
   Case: 11-30525     Document: 00512187631      Page: 40   Date Filed: 03/26/2013



                                  No. 11-30525

applied to Samuels’s offense level, his advisory sentencing range would have
been 92 to 115 months. Nonetheless, the Guidelines portion of his
sentence—that is, the portion not affected by the three mandatory consecutive
sentences imposed under 18 U.S.C. § 844(h)(1)—was limited by statutory
maximum sentences. 18 U.S.C. §§ 371, 1001, 1341, 1343. This part of the overall
sentence amounted to twenty-five years’ imprisonment. See id. §§ 3553(a),
3584(b) (setting out the factors to consider in determining whether sentences
should run concurrently or consecutively). The three mandatory § 844(h)(1)
sentences increased his overall sentence to seventy-five years’ imprisonment.
      Relying on dicta in one of our prior cases, Samuels argues that this is a
“case[] where a sentencing fact [(i.e., August’s murder)] is a ‘tail that wags the
dog of the substantive offense,’ and might arguably require a finding beyond a
reasonable doubt.” United States v. Mergerson, 4 F.3d 337, 344 (5th Cir. 1993)
(quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). We recently
explained that we “ha[ve] never required such a heightened burden” for offense
conduct findings, and our sister circuits have rejected it as well. United States
v. Brooks, 681 F.3d 678, 713 & n.31 (5th Cir. 2012). Accordingly, the district
court did not plainly err in applying the preponderance standard for Guidelines
purposes. See United States v. Setser, 568 F.3d 482, 498 (5th Cir. 2009).
      Even if a heightened standard applied, however, we would not reverse
Samuels’s conviction. Remarkably, Samuels contends that August’s homicide
and Samuels’s role in it were “unproven.” Once again, the government alleged
that, in satisfaction of the conspiracy count’s “overt act” requirement, Samuels
agreed to pay Surtain to kill August, and that Surtain fatally shot August on
April 24, 2004. As outlined above, the government offered an overwhelming
amount of evidence establishing that Samuels had August killed to obtain life
insurance proceeds, and certainly enough to satisfy the reasonable doubt
standard for purposes of the conspiracy count and the first-degree murder

                                       40
    Case: 11-30525      Document: 00512187631      Page: 41   Date Filed: 03/26/2013



                                    No. 11-30525

sentencing guideline. U.S.S.G. § 2A1.1; see also 18 U.S.C. § 1111 (“Murder is the
unlawful killing of a human being with malice aforethought. Every murder
perpetrated by any . . . kind of willful, deliberate, malicious, and premeditated
killing . . . is murder in the first degree.”).
                                III. CONCLUSION
      For the foregoing reasons, we VACATE Samuels’s sentences on Counts 12
and 13 of the superseding indictment, REMAND for reversal by the district court
of his conviction on one of these counts (at the government’s election) and
dismissal of that count, and order resentencing on the remaining count. We
deem the judgment of conviction on the remaining count AFFIRMED. In all
other respects, we AFFIRM the district court’s judgment.




                                          41
    Case: 11-30525      Document: 00512187631     Page: 42   Date Filed: 03/26/2013



                                   No. 11-30525

JAMES E. GRAVES, JR., Circuit Judge, concurring in part and dissenting in
part:
        I concur with the majority in all respects except for its affirmance of the
conviction of Charles Moss and Jermaine Surtain on Count 12 for aiding and
abetting the use of fire to commit obstruction of justice.
        The jury instruction on Count 12 requires that, to convict, the jury must
find beyond a reasonable doubt that the defendant “knowingly caused the use
of fire to alter, destroy, mutilate, or conceal a record, document, or other object,
or attempted to do so, with the intent to impair the object[’]s integrity or
availability for use in an official proceeding, or otherwise obstruct, influence, or
impede any official proceeding.”       The jury instruction then lists the four
elements of a charge of aiding and abetting, which was the charge Moss and
Surtain were facing in relation to Count 12:
              For you to find the defendant guilty of this crime, you must be
        convinced that the government has proved each of the following
        beyond a reasonable doubt:
              1.    That . . . the offense charged . . . was committed by
                    some person;
              2.    That the defendant associated with the criminal
                    venture;
              3.    That the defendant purposefully participated in the
                    criminal venture; and
              4.    That the defendant sought by action to make that
                    venture successful.
              The jury instruction further explains: “The term ‘to associate with
the criminal venture’ means that the defendant shared the criminal intent of the
principal. This element cannot be established if the defendant had no knowledge
of the principal’s criminal venture.” And “[t]he term ‘to participate in the
criminal venture’ means that the defendant engaged in some affirmative conduct
designed to aid the venture or assisted the principal of the crime.”

                                         42
    Case: 11-30525     Document: 00512187631      Page: 43    Date Filed: 03/26/2013



                                   No. 11-30525

      The majority’s opinion is correct that inferences supported by
circumstantial evidence can satisfy the elements of a crime, but those inferences
must be reasonable. United States v. Moreland, 665 F.3d 137, 149 (5th Cir.
2011) (quotation omitted) (“We [] will draw upon only reasonable inferences from
the evidence to support the verdict.”). “Courts cannot credit inferences within
the realm of possibility when those inferences are unreasonable.” Id. (quotation
omitted). Moreover, we “uphold the verdict if, but only if, a rational juror could
have found each element of the offense beyond a reasonable doubt.” Id. at 155
(quotation omitted). “A verdict may not rest on mere suspicion, speculation, or
conjecture, or on an overly attenuated piling of inference on inference.” Id. at
149 (quotation omitted).
      With respect to the four elements of the aiding and abetting charge for
Count 12, the first element is easily satisfied. David Samuels along with two
unidentified individuals committed the underlying offense of burning the van to
obstruct justice.
      Regarding the second element, “associating with the criminal venture,” a
reasonable jury would have to infer that Moss and Surtain had knowledge of and
shared in Samuels’s criminal intent, and had a motive to burn the van. I agree
that circumstantial evidence supports the inference that Moss and Surtain both
knew about Samuels’s van burning scheme and shared his motive—to destroy
evidence of Treyor Winston August’s murder.1
      The third and fourth elements, however, are more troublesome. The third
element requires that Moss and Surtain engaged in some affirmative conduct to
aid or assist Samuels in the burning of the van. The majority, citing United
States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008), properly notes that mere
encouragement is sufficient to “aid or assist.” The fourth element requires that

      1
        It is immaterial here that Samuels had an additional motive of collecting the
insurance payout for the destroyed van.

                                         43
   Case: 11-30525      Document: 00512187631     Page: 44   Date Filed: 03/26/2013



                                  No. 11-30525

Moss and Surtain sought by action to make the van burning successful. The
content of the phone calls between Moss and Samuels, and Surtain and Samuels
on the day and night of the van fire are unknown. Therefore, to properly find
Moss and Surtain guilty beyond a reasonable doubt on the third and fourth
elements, a jury would have to make two additional inferences: that the three
were discussing the burning of the van during those calls; and that during those
calls, Moss and Surtain aided or encouraged Samuels in setting the van ablaze.
        I agree that a reasonable jury, based on circumstantial evidence, could
have made the second inference regarding the likely content of the phone calls.
Nevertheless, the third inference—that Moss and Surtain aided or encouraged
Samuels—is a prime example of “speculation, [] conjecture, or an overly
attenuated piling of inference on inference.” Moreland, 665 F.3d at 149. This
inference is not tethered to any circumstantial evidence, and is therefore
unreasonable. I cannot accept the majority’s ruling that a rational juror could
have found beyond a reasonable doubt that Surtain and Moss encouraged
Samuels to burn the van during the calls or that Samuels sought Moss’s advice
on how to burn the van since Moss was the so-called go-to man on incendiary
devices. The record is clear that Samuels was the ringleader and organizer of
every criminal scheme. Based on the history of the three’s interactions, it is
indeed more likely that Samuels was instructing Surtain and Moss during those
calls, informing them of his plan to burn the van and what the others should do
next.
        Because a reasonable jury could not have found Moss and Surtain guilty
beyond a reasonable doubt on the last two elements of the aiding and abetting
charge, I dissent from the majority’s affirmance of the conviction of Moss and
Surtain on Count 12.




                                       44
