                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 90-1347
                             Summary Calendar
                          _____________________


UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

           versus

BILLY WAYNE ANDERSON,

                                                        Defendant-Appellant.

     _______________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
     _______________________________________________________

                           (October 21, 1992)

Before WILLIAMS, DAVIS and DUHÉ, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

     The facts of this case are stated fully in our prior panel

opinion, 933 F.2d 1261 (5th Cir. 1991).            In short, Anderson and

others    were    convicted    of    conspiring    to    burn   a   furniture

warehouse/store and its contents in violation of 18 U.S.C. § 371

(1988),   of     maliciously   committing    the   substantive      crime   in

violation of 18 U.S.C. § 844(i) (1988), and of mail fraud in

violation of 18 U.S.C. § 1341 (1988).        We affirmed the convictions

of the three co-defendants.         But we found the record inadequate to

evaluate under Fed. R. Evid. 404(b) the admission in evidence by

the trial court of four prior instances of fires in Anderson's
business establishments. We remanded to the trial court for a full

application of the requisite Beechum test, a two-step analysis that

trial courts must conduct before admitting Rule 404(b) evidence.

Under Beechum, the court must find that the evidence is relevant to

an   issue   other   than   the    defendant's    character    and   that   the

probative value of the proffered evidence outweighs the risk of

unfair prejudice. United States v. Beechum, 582 F.2d 898, 911 (5th

Cir. 1978)(en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59

L.Ed.2d 472 (1979).



      The district court did not make any specific rulings on

relevancy or prejudice.       Nor did the defendants request an on-the-

record statement of the court's evaluation of the admission in

evidence of the prior fires.        But it is established that even when

a defendant does not make such a request we will remand the case

for Beechum analysis if the admissibility of the other offense

evidence is a close question.          Anderson, 933 F.2d at 1273.           In

Robinson, 700 F.2d at 213, we advised that we will remand the case

"unless    the   factors    upon   which   the   probative    value/prejudice

evaluation were made are readily apparent from the record, and

there is no substantial uncertainty about the correctness of the

ruling."     See also United States v. Moreno, 878 F.2d 817, 823 (5th

Cir. 1988), cert. denied, 493 U.S. 979, 110 S.Ct. 508, 107 L.Ed.2d

510 (1989).




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     Accordingly, we instructed the trial court as follows:

     First, after the government has stated its specific Rule
     404(b) grounds for admissibility, the district court must
     determine the Rule 404(b) categories to which the
     evidence is relevant. Then the court must make a Rule
     104(b) ruling as to whether jurors could reasonably
     conclude by a preponderance of the evidence that all four
     fires were the result of Anderson's arson. If the court
     holds that the evidence meets this first Beechum step as
     to relevancy, it then must decide whether the evidence's
     probative value is substantially outweighed by its
     prejudicial effect. If the court determines that the
     probative value was substantially outweighed, then the
     court must decide whether there is a reasonable
     possibility that the evidence affected the outcome of the
     case. In making this determination, the court should
     consider the effect of the jury instruction and the
     government's closing argument. If the court finds that
     the evidence improperly affected the outcome of the case,
     the court must order a new trial. If the court finds
     that the evidence did not improperly affect the outcome
     of the case, "[t]he trial judge shall certify to us his
     findings and conclusions.        The record shall be
     supplemented by the on-the-record determination herein
     prescribed, and by any materials submitted by the parties
     to the district court. Following such filing, the clerk
     will set a schedule for supplementary briefing and the
     matter will be returned to this panel for disposition."

933 F.2d at 1237 (quoting United States v. Robinson, 700 F.2d 205,
214 n. 12 (5th Cir. 1983)).



     In conformity with these instructions, the district court

conducted a full evidentiary hearing and also received additional

briefing on the issue of the admissibility of evidence of the prior

fires.   The court found that significant evidence supported the

proposition   that   Anderson's   arson   caused   the   previous   fires.

First, government witness Gene Lindsey testified that Anderson

admitted setting these earlier fires at his facilities and then

using the insurance money to build a new manufacturing plant.

Lindsey also testified that Anderson then showed him a picture of

                                   3
the new factory.      Co-defendant Jerry Dennis Thomas confirmed that

Anderson showed Lindsey and him a picture of the new factory.           This

testimony was confirmed in a tape recorded conversation between

Lindsey and Thomas.         Second, these fires actually occurred, and

Anderson received insurance proceeds totalling about $1.5 million.

Third, the government's certified public accountant testified that

Anderson's businesses had experienced slumping sales and that these

recoveries   tended    to    improve   Anderson's   debt/equity   and   cash

positions.   Fourth, the suspicious circumstances of the fires, in

which only select parts of the facilities were burned, suggested

illicit activity. Finally, Anderson's testimony at trial regarding

the number and nature of the prior fires, and the amounts of money

he recovered from his insurance companies differed from the sworn

testimony he had given earlier to an insurance company attorney.



     The court then concluded that (1) the evidence of the other

fires was relevant to prove the contested issues of motive and

intent, (2) pursuant to the conditional relevancy test of Rule

104(b),1 the jury could reasonably find by a preponderance of the

evidence that the four previous fires at Anderson's manufacturing

plants resulted from his arson, (3) the probative value of this

evidence, considered in light of the extent to which the jury


     1
       The admission of extrinsic offenses under Rule 404(b) must
be evaluated under the conditional relevancy test of Rule 104(b),
which states that "[w]hen the relevancy of evidence depends upon
the fulfillment of a condition of fact, the court shall admit it
upon, or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition."

                                       4
instructions and the government's closing argument affected its

possible prejudicial impact, was not substantially outweighed by

its possible unfair prejudicial effect on Anderson, and (4) the

admission of this evidence did not improperly affect the outcome of

the case.



     We have carefully reviewed the post-appeal transcript, the

district court's Findings of Fact and Conclusions of Law, and the

parties' supplemental briefs.             We hold that within the trial

judge's   considerable    discretion       it    was    proper   to     admit   the

extrinsic evidence of the four previous fires.                As we said in our

prior opinion, "We apply a highly deferential standard to a trial

court's evidentiary rulings and will reverse only for an abuse of

discretion." Anderson, 933 F.2d at 1261. The requirements of Rule

104(b) and   Rule     404(b),   as   explicated        in   Beechum,    have    been

satisfied.



     We   find   no   reversible     error      in   the    record     and   affirm

Anderson's convictions.



AFFIRMED.




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