211 F.3d 1049 (7th Cir. 2001)
UNITED STATES OF AMERICA,    Plaintiff-Appellee,v.RUBY GARDNER,    Defendant-Appellant.
No. 99-2193
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 12, 2000
Decided May 3, 2000

Appeal from the United States District Court  for the Central District of Illinois.  No. 97 CR 20054--Michael P. McCuskey, Judge.
Before POSNER, Chief Judge, and COFFEY and RIPPLE,  Circuit Judges.
RIPPLE, Circuit Judge.


1
On April 23, 1995, a fire  occurred at the offices of Gardner Trucking, Inc.  Thereafter, Ruby Gardner was charged with arson  in violation of 18 U.S.C. sec.sec. 844(i) and 2  (Count I), mail fraud in violation of 18 U.S.C.  sec.sec. 1341 and 2 (Counts II and III), and  using fire to commit a federal felony in  violation of 18 U.S.C. sec. 844(h) (Count IV).  Although she pleaded not guilty, a jury found her  guilty on all four counts. The district court  sentenced her to 33 months imprisonment for each  of Counts I, II and III, to be served  concurrently, and to 60 months imprisonment for  Count IV, to be served consecutively to the 33-  month term. Ms. Gardner appeals. She claims that  there was insufficient evidence to convict her,  that the district court abused its discretion in  allowing the expert testimony of Dr. John DeHaan,  and that the sentencing scheme under 18 U.S.C.  sec. 844(h), as applied, does not reflect the  intent of Congress and is also violative of the  Eighth Amendment. For the reasons set forth in  the following opinion, we affirm the judgment of  the district court.

I    BACKGROUND
A.

2
1. Ms. Gardner was part owner, president, and  director of Gardner Trucking. Among her duties,  she handled the financial aspects of the  corporation. Gardner Trucking experienced  financial difficulties prior to the fire on April  23, 1995. For example, the company was often late  paying its rent. Its drivers experienced  difficulties being paid, obtaining money to  purchase fuel, and having the company repair  their trucks. Revenues at the beginning of 1995  were less than half the revenues from the same  time frame in 1994. The company wrote an  increasing number of checks without sufficient  funds and told several creditors that it was  experiencing financial problems.


3
Also, at the beginning of 1995, the Internal  Revenue Service ("IRS") informed Ms. Gardner  that, because of an outstanding tax lien, it  would attempt to attach the company's assets.  Consequently, on March 30, it required her to  produce corporate records to determine if any  funds were available for collection. Meanwhile,  around March 28, the company received a notice of  intent to cancel insurance policies on its trucks  based on overdue policy payments. By the week of  April 21, Gardner Trucking was not paying its  drivers or its clerical employees.


4
According to the testimony at trial, at the time  of the fire, Gardner Trucking owed $136,000 with  just over $10,000 in cash accounts. It had  several debts that were past due or in arrears  and tax liens from both the Illinois Department  of Revenue and the IRS.


5
Approximately two weeks prior to the fire, Ms.  Gardner called Turner Risk Management seeking an  insurance premium quote for Gardner Trucking's  office property. Seven days before the fire, she  asked her brother-in-law, an independent  insurance agent for Funk Insurance Agency, to  write a commercial insurance policy for Gardner  Trucking. Five days before the fire, the agency  issued a 30-day insurance binder on behalf of  American States Insurance Company to Gardener  Trucking with a contents replacement cost policy  limit of $106,200. Prior to receiving this  insurance policy, Gardner Trucking had not been  insured since October 7, 1994; its previous  policy had been canceled because of its failure  to pay its premiums.


6
2.  Shortly after 3 p.m. on Sunday, April 23, 1995,  Jerry and Judith Livingston were driving to their  house, which was located about 60 feet from the  building where Gardner Trucking was situated,  when a car cut them off. Both Jerry and Judith  Livingston testified that the car was driven by  Ms. Gardner and that it had the license number  LGM 439. The car and license plate were both  registered to Ms. Gardner. After driving in front  of the Livingstons, the car turned into Gardner  Trucking and parked. Jerry Livingston testified  that, at this time, no smoke or fire could be  seen at Gardner Trucking.


7
About 20 to 30 minutes after the Livingstons  arrived home, a neighbor arrived to tell them  that Gardner Trucking was aflame. Jerry  Livingston went outside and saw heavy black smoke  rising from the building. The Livingstons noticed  Ms. Gardner sitting in her car across the street.


8
Firefighters arrived and forced their way into  the building. The volunteer fire chief, Don  Madlem, arrived at the fire at approximately 4:12  p.m. and talked with Ms. Gardner. According to  Madlem, she appeared excited and concerned about  the fire but not hysterical or crying. In fact,  he stated that she spoke with a normal,  conversational tone.


9
That same night, Illinois State Fire Marshal  Investigator Donald Tankersley arrived to examine  the scene of the fire. He observed that the  heaviest fire damage had occurred in Ms.  Gardner's office and in the adjoining office and  concluded that the fire had originated in those  two rooms. The center floor area of Ms. Gardner's  office was burned out, which indicated intense  fire at the floor level. The detection dog  alerted in this area and at several places in the  adjoining office, which indicated the possibility  that an ignitable liquid was present. The dog did  not alert in any place other than Ms. Gardner's  office and the adjoining office. Tankersley  opined, based on the findings and the data  collected at the scene, that the fire was set  intentionally.


10
Insurance investigator Stephen Briggs examined  the scene of the fire three days later. According  to Briggs, the heat and burn patterns were  consistent with an accelerant being used in the  fire and with two separate areas of origin for  the fire. The doors were locked throughout the  duration of the fire, and no forcible entry,  other than that of the firefighters, was evident.  Based on his personal examination of the wiring  of the entire building, Briggs determined that  the source of the fire was not the electrical  system. Although Briggs' written report of his  investigation did not state explicitly that he  ruled out the electrical system as the cause of  the fire, at trial he testified to that effect.  Briggs concluded, at trial, that the fire  originated at floor level, that a large quantity  of liquid accelerant had been used in Ms.  Gardner's office and in the adjoining office, and  that the two fires were set intentionally.


11
As part of the investigation, samples from the  scene of the fire were sent to Bri-Mar  International Laboratories for analysis. Samples  from Ms. Gardner's office and from the adjoining  office contained a Class 2 accelerant; Class 2  accelerants include gasolines and camping fuels.


12
The Government retained Dr. John DeHaan, an  expert in investigating the cause and origin of  fires, to review the evidence from the fire. He  reviewed 120 photographs and the three reports  from the investigators of the fire scene.1 He  also conducted personal interviews with people  who were at the scene to learn additional details  about the fire. According to the testimony at  trial, experts in the field of fire cause and  origin investigation commonly rely on  photographs, videotapes, diagrams, sketches,  interview reports, and personal interviews with  persons present at the scene to formulate an  opinion. In Dr. DeHaan's opinion, the data he  received was sufficient to make a proper analysis  of this particular fire.


13
Dr. DeHaan opined that two separate origins of  the fire existed, that faulty electrical wiring  was not the ignition source, and that the burn  pattern and the damage were consistent with the  use and presence of an accelerant.


14
3. Around June 26 or 27, Ms. Gardner sent, through  the United Parcel Service, proof of loss to  Gardner Trucking's insurer. Then, on July 12, she  sent the insurer, through United States Mail,  additional documents relating to her insurance  claim. These two acts formed the basis for the  two counts of mail fraud. They also were the  basis for the charge of using fire to commit a  felony because the Government argued that Ms.  Gardner had used fire to commit the underlying  felony of mail fraud.

B.

15
1.  At trial, defense counsel cross-examined  Tankersley about the possibility that electrical  wiring had caused the fire, and Tankersley  conceded that he had not investigated the  electrical system at all but had ruled out the  electrical system as a possible source of the  fire based only on reports of other scene  investigators. Briggs testified that he had ruled  out the electrical system as the cause of the  fire by examining the wiring of the entire  building, but defense counsel, on cross-  examination, attempted to impeach Briggs' method  of investigation and noted that Briggs' written  report did not state explicitly that he had ruled  out an electrical cause of the fire.


16
Ms. Gardner made a motion in limine to exclude  the testimony of Dr. DeHaan, which the court  denied. She renewed this motion after Briggs'  testimony and claimed that Dr. DeHaan's proposed  testimony was cumulative and was lacking in  direct knowledge. The district court again denied  the motion and ruled that, based on the cross-  examination of the Government's other expert  witnesses, the testimony was still unclear  whether a potential electrical cause of the fire  had been properly examined. Dr. DeHaan proceeded  to testify at trial that electrical wiring  problems had not caused the fire, that an  accelerant had been used and, thus, that the fire  was set intentionally.


17
2.  The jury found Ms. Gardner guilty of all four  charges in the indictment. At sentencing, the  district court determined that Ms. Gardner's  offense level was 20 and that her criminal  history was Category I. Therefore, the district  court found that her guideline sentencing range  was 33 to 45 months on the arson and mail fraud  counts and that she faced a mandatory minimum of  60 additional months to be served consecutively  for using fire to commit a felony. The court  sentenced her to 93 months imprisonment: 33  months for the arson count and for the two mail  fraud counts, to be served concurrently, and 60  months for the final count of using fire to  commit a felony, to be served consecutively.

II    DISCUSSION
A.

18
We first address Ms. Gardner's claim that her  conviction is based on insufficient evidence.  When reviewing an insufficiency of the evidence  claim, we must accept the evidence in the light  most favorable to the prosecution. See United  States v. Szarwark, 168 F.3d 993, 995 (7th Cir.  1999); United States v. O'Brien, 119 F.3d 523,  532 (7th Cir. 1997); United States v. Dunigan,  884 F.2d 1010, 1013 (7th Cir. 1989). Also, "[o]ur  inquiry is limited to a determination of whether  any rational trier of fact could have found the  elements of the offense charged beyond a  reasonable doubt." Dunigan, 884 F.2d at 1013. We  shall "'overturn a verdict only when the record  contains no evidence, regardless of how it is  weighed, from which the jury could find guilt  beyond a reasonable doubt.'" Szarwark, 168 F.3d  at 995 (quoting United States v. Moore, 115 F.3d  1348, 1363 (7th Cir. 1997)).


19
The statutory provision for arson states in  pertinent part: "Whoever maliciously damages or  destroys, or attempts to damage or destroy, by  means of fire or an explosive, any building"  shall be fined and/or imprisoned. 18 U.S.C. sec.  844(i). Ms. Gardner submits that there was  insufficient evidence to prove that she had a  motive to burn Gardner Trucking. Noting that its  obligation is to prove intent, not motive,2 the  Government counters that it presented  circumstantial evidence to establish that Ms.  Gardner had the requisite intent. That evidence,  if credited by the jury, would indeed have shown  that she had the necessary intent. Specifically,  the Government introduced evidence of her  corporation's financial condition. In addition,  the evidence showed that she was seen near the  building soon before the fire started, that she  did not appear upset after learning of the fire,  and that the fire had been set intentionally. On  the basis of this evidence, a rational jury was  entitled to conclude that Ms. Gardner had the  requisite state of mind for arson and that she  did, in fact, burn Gardner Trucking.


20
Ms. Gardner also urges us to determine that  there was insufficient evidence to find that one  of the witnesses who saw her on the scene, Jerry  Livingston, was credible. Our review of a jury's  credibility determination entails the utmost  deference. See Dunigan, 884 F.2d at 1013. "[I]t  is not our role, when reviewing the sufficiency  of the evidence, to second-guess a jury's  credibility determinations." United States v.  McGee, 189 F.3d 626, 630 (7th Cir. 1999). As we  have stated, "'absent extraordinary  circumstances,' this court will not reevaluate  the testimony of a witness to determine his or  her motives or other possible measures of  reliability." Dunigan, 884 F.2d at 1013 (quoting  United States v. Garner, 837 F.2d 1404, 1423 (7th  Cir. 1987)). The testimony that Ms. Gardner  questions was heard by the jury. The jury is the  fact-finder and, thus, is the body responsible  for weighing credibility. Because Ms. Gardner has  not shown us any reason, other than slight  contradictions in Livingston's testimony, to  reverse the credibility determination of the  jury, we hold that her sufficiency of the  evidence claim must fail.

B.

21
Ms. Gardner next questions the district court's  decision to allow the expert testimony of Dr.  DeHaan. She submits that his testimony did not  have a reliable basis and that it was cumulative.  For either of these reasons, Ms. Gardner claims,  this court should conclude that the district  court abused its discretion in allowing Dr.  DeHaan to testify.


22
1. Ms. Gardner argues first that the Government did  not have a reliable basis for admitting the  expert testimony of Dr. DeHaan. Federal Rule of  Evidence 702 sets forth when an expert's  testimony may be admitted:


23
If scientific, technical, or other specialized  knowledge will assist the trier of fact to  understand the evidence or to determine a fact in  issue, a witness qualified as an expert by  knowledge, skill, experience, training, or  education, may testify thereto in the form of an  opinion or otherwise.    Fed. R. Evid. 702.


24
Before the district court may allow expert  testimony into evidence, the submitting party  must show that the testimony has a reliable  basis. Rule 703 of the Federal Rules of Evidence  explains:


25
The facts or data in the particular case upon  which an expert bases an opinion or inference may  be those perceived by or made known to the expert  at or before the hearing. If of a type reasonably  relied upon by experts in the particular field in  forming opinions or inferences upon the subject,  the facts or data need not be admissible in  evidence.    Fed. R. Evid. 703. Daubert v. Merrell Dow  Pharmaceuticals, Inc., 509 U.S. 579 (1993),  clarifies that an expert may testify after the  trial judge determines that "the expert is  proposing to testify to (1) scientific knowledge  that (2) will assist the trier of fact to  understand or determine a fact in issue." Id. at  592.


26
Here, Dr. DeHaan testified about the cause and  origin of the fire, which helped the jury  determine whether the fire was caused by arson.  Thus, Dr. DeHaan's testimony meets the  requirements of Rule 702. We also believe that  the requirements of Rule 703 and the Supreme  Court's holding in Daubert have been met. Dr.  DeHaan's reliance on reports, photographs, and  third-party observations, which may not have been  admissible into evidence, served as a reliable  basis for his testimony because these materials  are facts or data "of a type reasonably relied  upon by experts" in the field of fire cause and  origin. See United States v. Lundy, 809 F.2d 392,  395 (7th Cir. 1987); United States v. Lawson, 653  F.2d 299, 302 (7th Cir. 1981); see also In re  James Wilson Assocs., 965 F.2d 160, 172-73 (7th  Cir. 1992).


27
In Lundy, this court allowed hearsay and third-  party observations to be used by an expert of  arson investigation in forming his opinion. See  809 F.2d at 394-95. Similarly, in Lawson, we  allowed a psychiatrist testifying as an expert to  rely on staff reports, interviews with other  doctors, and background information from the  Marine Corps and United States Attorney's Office  to form the basis of his opinion. See 653 F.2d at  302. In both cases, we allowed these materials to  form the basis for the expert's testimony because  they were of a type reasonably relied on by  experts in the field. Similarly, the Sixth  Circuit, in United States v. Ashworth, 836 F.2d  260 (6th Cir. 1988), recognized that photographs  are standard materials used by arson  investigators. See id. at 264.


28
Here, Dr. DeHaan and the other experts called to  the witness stand testified that photographs and  reports are the type of materials usually relied  on in arson investigation to form an opinion  about the cause of the fire. The district court  was entitled to credit that testimony and to  conclude that the materials that Dr. DeHaan used  as the basis for his testimony were of a type  reasonably relied on by experts in his field and,  thus, were an appropriate basis for his expert  opinion.


29
2. Ms. Gardner argues next that Dr. DeHaan's  testimony was cumulative and therefore  prejudicial. Rule 403 of the Federal Rules of  Evidence states: Although relevant, evidence may be excluded if  its probative value is substantially outweighed  by the danger of unfair prejudice, confusion of  the issues, or misleading the jury, or by  considerations of undue delay, waste of time, or  needless presentation of cumulative evidence.


30
Fed. R. Evid. 403. "The court's admission of  evidence under Rule 403 of the Federal Rules of  Evidence is entitled to special deference. 'Only  in an extreme case are appellate judges competent  to second-guess the judgment of the person on the  spot, the trial judge.'" United States v.  Bradley, 145 F.3d 889, 892 (7th Cir. 1998)  (quoting United States v. Crockett, 979 F.2d  1204, 1211 (7th Cir. 1992)). Determining whether  testimony is cumulative rests within the sound  discretion of the district court. See United  States v. Kizeart, 102 F.3d 320, 325 (7th Cir.  1996).


31
"Evidence is 'cumulative' when it adds very  little to the probative force of the other  evidence in the case, so that if it were admitted  its contribution to the determination of truth  would be outweighed by its contribution to the  length of the trial, with all the potential for  confusion, as well as prejudice to other  litigants, who must wait longer for their trial,  that a long trial creates." United States v.  Williams, 81 F.3d 1434, 1443 (7th Cir. 1996); see  also Bradley, 145 F.3d at 894 (stating that a  piece of evidence is not cumulative if its  evidentiary value outweighs its contribution to  the length of the trial).


32
Dr. DeHaan's testimony was not cumulative  because the Government used it to reply to the  cross-examination of its earlier experts. His  testimony addressed whether the fire had an  electrical source. This evidence was probative  because, if faulty electrical wiring caused the  fire, Ms. Gardner would not be guilty of arson.  On the other hand, if faulty electrical wiring  clearly did not cause the fire, then the  investigators and the jury needed to search for  an alternative source of the fire, such as arson.  During the cross-examinations of the Government's  other expert witnesses, Tankersley and Briggs,  defense counsel suggested that the fire was not  the result of arson but was caused by an  electrical problem. The cross-examination of  Tankersley demonstrated that he had not  determined personally that the electrical system  was not the cause of the fire but that he had  based his opinion on the conclusions found in the  reports of other scene investigators. The cross-  examination of Briggs questioned his method for  concluding that the electrical wiring did not  cause the fire. It also noted that his written  report lacked a conclusion that ruled out the  electrical system. Because the defense had placed  in question, through cross-examination, the  thoroughness of the other experts'  investigations, the district court certainly did  not abuse its discretion in allowing Dr. DeHaan  to testify on the same issue.

C.

33
Ms. Gardner submits that applying consecutive  sentence terms for arson and for using fire to  commit a federal felony is unconstitutional on  Double Jeopardy and Eighth Amendment grounds.3


34
Ms. Gardner first claims, in essence, that the  statute violates the Double Jeopardy Clause of  the Fifth Amendment. She submits that Congress  did not intend to authorize separate and  consecutive punishments for the offense of arson  and for the offense of using fire to commit a  federal felony.


35
This circuit already has confronted this issue  in United States v. Zendeli, 180 F.3d 879 (7th  Cir. 1999). In that case, we noted that the  judicial task was to determine whether Congress,  in enacting the statute, intended for separate  sections of the statute to authorize the  imposition of separate punishments.4


36
In Zendeli, because the language, structure, and  legislative history of the statute could yield no  clear answer,5 we relied on the test enunciated  by the Supreme Court in Blockburger v. United  States, 284 U.S. 299 (1932):


37
The applicable rule is that, where the same act  or transaction constitutes a violation of two  distinct statutory provisions, the test to be  applied to determine whether there are two  offenses or only one is whether each provision  requires proof of an additional fact which the  other does not.


38
Id. at 304.6 In Zendeli, under  indistinguishable circumstances, we held that  each of the two statutory provisions involved  here requires a different element that the other  does not. To prove arson under sec. 844(i), the  Government must show that a defendant damaged or  attempted to damage "property used in interstate  or foreign commerce or in any activity affecting  interstate or foreign commerce." 18 U.S.C. sec.  844(i). To prove that a defendant used fire to  commit a felony under sec. 844(h), the Government  must show that the defendant committed a separate  "felony which may be prosecuted in a court of the  United States." 18 U.S.C. sec. 844(h). Here, that  felony is mail fraud. The Government must have  proven that Ms. Gardner made use of the United  States mail to attempt to defraud the insurance  company.7


39
A principled adherence, as dictated by the  doctrines of stare decisis and precedent, to our  decision in Zendeli requires that we hold that  Ms. Gardner may be sentenced for arson, for mail  fraud, and for use of fire to commit a federal  felony without violating the Double Jeopardy  Clause of the Fifth Amendment. See Zendeli, 180  F.3d at 886; Nguyen, 28 F.3d at 485.


40
2. Finally, Ms. Gardner claims that the statute  violates the Eighth Amendment. However, although  Ms. Gardner sets out the standard for a violation  of the Eighth Amendment, she does not explain why  this statute violates the Eighth Amendment or why  this statute results in excessive punishment.  Furthermore, "the level of punishment to be  imposed for crimes is the business of Congress,  not the courts. Only in very narrow circumstances  has a punishment within statutory limits been  held to violate the Eighth Amendment." United  States v. Farmer, 73 F.3d 836, 840 (8th Cir.  1996).

Conclusion

41
For the foregoing reasons, we affirm the  judgment of the district court.

AFFIRMED


Notes:


1
 Dr. DeHaan reviewed the reports from Tankersley,  another fire marshal, and an insurance  investigator.


2
 See United States v. Wilson, 2 F. Supp.2d 1170,  1171 (E.D. Wis. 1998) ("[M]ost crimes require  only proof of an act and an intent to so act.  Motive is usually relegated to the status of  immateriality.").


3
 The statutory provision for arson states as  follows:    (i) Whoever maliciously damages or destroys, or  attempts to damage or destroy, by means of fire  or an explosive, any building, vehicle, or other  real or personal property used in interstate or  foreign commerce or in any activity affecting  interstate or foreign commerce shall be  imprisoned for not less than 5 years and not more  than 20 years, fined under this title, or both .  . . .    18 U.S.C. sec. 844(i). The statute for using fire  to commit a felony states as follows:    (h) Whoever--    (1)  uses fire or an explosive to commit any  felony which may be prosecuted in a court of the  United States, or    (2)  carries an explosive during the commission  of any felony which may be prosecuted in a court  of the United States,  . . . shall, in addition to the punishment  provided for such felony, be sentenced to  imprisonment for 5 years but not more than 15  years. . . .    18 U.S.C. sec. 844(h).


4
 See Garrett v. United States, 471 U.S. 773, 778  (1985) ("Where the same conduct violates two  statutory provisions, the first step in the  double jeopardy analysis is to determine whether  the legislature--in this case Congress--intended  that each violation be a separate offense."). See  also United States v. Hayward, 6 F.3d 1241, 1245  (7th Cir. 1993) ("A court's starting point to  determine the intent of Congress is the language  of the statute itself."). If a statute clearly  indicates on its face that Congress intended both  statutory provisions to be applied for the same  conduct, then the statute controls.
If "[t]he provisions are unambiguous on their  face and each authorizes punishment for a  violation of its terms," then Congress intended  punishment under each. Albernaz v. United States,  450 U.S. 333, 336 (1981); see also United States  v. Corona, 108 F.3d 565, 572 (5th Cir. 1997)  ("When multiple punishments are at issue, our  inquiry focuses on whether Congress intended for  the defendant's actions to be subject to the  punishment received. If statutory language  authorizes the punishment, there can be no double  jeopardy violation."); cf. United States v.  Fiore, 821 F.2d 127, 130 (2d Cir. 1987) ("If the  offenses charged are set forth in different  statutes or in distinct sections of a statute,  and each section unambiguously authorizes  punishment for a violation of its terms, it is  ordinarily to be inferred that Congress intended  to authorize punishment under each provision.").


5
 See Zendeli, 180 F.3d at 888 (Ripple, J.,  dubitante) (stating that, for sec. 844, "[t]here  is simply no evidence in this statute, its  structure, or the legislative history that  Congress has authorized consecutive punishments  for arson and for arson in the course of the  commission of another felony"); see also United  States v. Karlic, 997 F.2d 564, 571 (9th Cir.  1993); Fiore, 821 F.2d at 133 (Newman, J.,  concurring); Anti-Arson Act of 1982, Pub. L. No.  97-298, 96 Stat. 1319; H.R. Rep. No. 97-678, at 1  (1982), reprinted in 1982 U.S.C.C.A.N. 2631.


6
 See also Whalen v. United States, 445 U.S. 684,  693-94 (1980); Zendeli, 180 F.3d at 885-86 (7th  Cir. 1999); Corona, 108 F.3d at 572; United  States v. Nguyen, 28 F.3d 477, 485 (5th Cir.  1994); Karlic, 997 F.2d at 570-71; Fiore, 821  F.2d at 130; United States v. Chaney, 559 F.2d  1094, 1096 (7th Cir. 1977).


7
 United States v. Chaney is not controlling. See  Zendeli, 180 F.3d at 887 (Ripple, J., dubitante).  In Chaney, the defendant was charged in Count I  under sec. 844(i) with maliciously attempting to  destroy a structure by means of an explosive and  was charged in Count III under sec. 844(h) with  knowingly using an explosive to commit a felony,  that is, the felony of maliciously attempting to  destroy a structure by means of an explosive. See  Chaney, 559 F.2d at 1096. As this court  discussed, a comparison of the two counts showed  that the charges were identical except for which  statutory provision they were charged under. See  id. "Therefore, the evidence necessary to prove  the offense charged under Count I would prove the  offense charged under Count III, and vice versa."  Id. Therefore, we concluded that, because the  Double Jeopardy analysis asks whether each  statutory provision requires proof of a fact  which the other does not and because each count  would be proved by identical evidence, the two  counts constituted the same offense under the  Double Jeopardy Clause. See id.


