                      UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT



                                      No. 94-30234



UNITED STATES OF AMERICA,
                                                                        Plaintiff-Appellee,
                                          versus
FELIX A. RIGGIO,
                                                                      Defendant-Appellant.



                       Appeal from the United States District Court
                          for the Eastern District of Louisiana

                                   November 21, 1995


Before POLITZ, Chief Judge, WISDOM and STEWART, Circuit Judges.
POLITZ, Chief Judge:
      Felix A. Riggio appeals his convictions of conspiracy to commit arson and the use of
fire in the commission of a federal felony. Finding no error, we affirm.
                                       Background
      On March 21, 1991, the Ken Hebert Chevrolet dealership in Marksville, Louisiana
was seriously damaged by a fire found to be the product of arson. Sometime prior thereto,
Ken Hebert, the owner of the dealership, encountered financial difficulties and decided to
torch the building to collect on an F&EC insurance policy. Hebert enlisted an employee,
Louis Chedville, to set fire to the building. Chedville received $6000 and he in turn hired
Felix “Pete” Riggio to do the job for $5000. Pursuant to a plea agreement, Hebert admitted
that he conspired to commit arson and to defraud his insurance company. Chedville pled
guilty to attempted arson and conspiracy to commit arson.
            In due course Riggio was indicted for conspiracy to commit arson,1 arson,2 and use
of fire to commit a federal felony.3 An in limine motion to dismiss the use of fire charge as
duplicative of the arson charge was denied. Riggio was tried on all three counts. Wary over
concerns of possible jury tampering, the district court empaneled an anonymous jury, finding
same necessary because the record reflected that witnesses were allegedly threatened,4 the
defendant had been accused of jury tampering in a previous case, and he allegedly had ties
to organized crime.5
            Hebert, Chedville, and Jerry Young, an employee of Riggio, all testified about
Riggio’s involvement in the conspiracy. On direct examination Riggio stated, “I’ve never
burned down anything in my life.” Over his objections the prosecution cross-examined him
about previous fires for which no charges had been made.6 In defense, Riggio testified that
he could not have committed the crime because at the time of the fire he was watching a


   1
       18 U.S.C. § 371 (1994).
   2
       18 U.S.C. § 844(I) (1994).
   3
       18 U.S.C. § 844(h)(1) (1994).
        4
       The record reflects that witness A was told he would be a “dead mother” if he
cooperated, witness B was told Riggio would “blow his brains out,” and witness C was told
that the witnesses would become a part of “history . . . real quick.”
       5
     Riggio subsequently was indicted, along with a number of alleged organized crime
figures, for a conspiracy involving video poker gaming in Louisiana.
   6
    Riggio testified that he received insurance proceeds for fire damage at his home and for
the destruction by fire of his truck. He admitted that he had been behind on payments for
both the house and the truck. Riggio also testified that he received $800 from the insurance
proceeds for the destruction of a duplex and a mobile home that was parked near one of his
apartments. He admitted that he had taken out insurance policies on these properties and that
he brought the beneficiary to the insurance company to collect the proceeds.
                                                2
basketball game.
       Riggio was convicted of conspiracy to commit arson and use of fire in the commission
of a federal felony. He was sentenced to consecutive prison terms of 41 and 60 months,
respectively, and timely appealed.
                                          Analysis
       A.     Double Jeopardy
       Riggio contends that his conviction for both the use of fire in the commission of a
federal felony and conspiracy to commit arson violated the fifth amendment bar against
double jeopardy. In Blockburger v. United States,7 the Supreme Court detailed the test to
determine if an individual is being punished twice for the same offense:

       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.8
In the absence of clear, contrary legislative intent, two statutory provisions which proscribe
the same offense should not be construed to authorize cumulative punishment.9 In the matter
at bar we must determine whether conspiracy to commit arson and the use of fire in the
commission of a felony are duplicative when the use of fire charge is based upon the
conspiracy to commit arson. Additionally, we must determine if Congress intended to
authorize cumulative punishments for these offenses.
       We conclude that conspiracy to commit arson may serve as the predicate felony for
a use of fire charge. The conspiracy statute is aimed at punishing persons acting in concert

   7
    284 U.S. 299 (1932).
   8
    Id. at 304.
   9
    Whalen v. United States, 445 U.S. 684 (1980).
                                              3
to commit an offense. Arson and the use of fire statutes are aimed at punishing those who
make criminal use of fire.10 Conspiracy to commit arson does not require that the individual
defendant actually use fire.11 The additional element of using fire must be proved for a
conviction of the use of fire during the commission of a felony charge under 18 U.S.C.
§ 844(h)(1). Conspiracy to commit arson and the use of fire in the commission of a felony
are not duplicative.12
         It is clear that Congress intended that the penalties from these charges would be
cumulative. 18 U.S.C. § 844(h)(1) provides that anyone convicted of using fire in the
commission of a felony shall receive an additional sentence of between five and fifteen
years. The statute expressly provides that the sentence is not to run concurrent with any
other sentence and cannot be suspended.13 The district court acted properly in imposing the
consecutive sentence of 60 months for the use of fire in addition to the sentence imposed for
conspiracy.
         B.    Evidence of Other Fires
         We next address Riggio’s challenge to the admission of evidence concerning specific
instances of conduct. During cross-examination he was questioned about four separate fires

   10
     The instant case is different from the situation in which the defendant is convicted of
arson and the use of fire charge. United States v. Chaney, 559 F.2d 1094 (7th Cir. 1977)
(holding that arson cannot be the underlying felony for a charge under 18 U.S.C. § 844(h)(1)
because arson obviously requires the use of fire).
   11
     Conspiracy to commit arson requires that two or more individuals plan to use fire in
maliciously destroying or damaging a building used in interstate commerce and one or more
of the conspirators must perform an act to further the object of the conspiracy. 18 U.S.C.
§§ 371 and 844(I). The actual use of fire is not a requirement of the statute.
  12
    This situation is analogous to one in which a defendant is charged with both conspiracy
and the underlying substantive charge, a dual charging which clearly is not barred by double
jeopardy.
   13
       18 U.S.C. § 844(h) (1994).
                                              4
for which no charges had been made. Riggio maintains that the district court should have
granted a mistrial because references to these fires violated Federal Rule of Evidence 404(b).
The trial court’s decision to admit evidence is reviewed for abuse of discretion.14 It cannot
be gainsaid that evidence of past crimes or bad acts is inadmissible under Rule 404(b) when
it is used to prove a defendant’s bad character.15 Similarly, Rule 608(b) provides that
“[s]pecific instances of conduct of a witness, for the purpose of attacking or supporting the
witness’ credibility, other than conviction . . ., may not be proved by extrinsic evidence.”16
At the discretion of the trial court, however, prior conduct may be inquired into on cross-
examination of a witness if the evidence tends to test the truthfulness of testimony given on
direct examination.17 Rule 608(b) clearly applies to evidence introduced to impeach the
testimony of a witness.
        The evidence in this case was introduced to rebut the testimony of the defendant, and
thus the appropriate analysis is under Rule 608(b). Evidence of Riggio’s credibility was
highly probative. He testified at length about his lack of involvement in the charged offense,
making his credibility a central issue in the case. He specifically testified, “I’ve never burned
anything down in my life,” and “I never been involved in criminal activity.” The cross-
examination into certain specific instances of conduct, or misconduct, was appropriate. The
district court’s decision to admit this impeachment evidence was neither erroneous nor an
abuse of discretion.
        C.     Jury Anonymity

   14
     United States v. Townsend, 31 F.3d 262 (5th Cir. 1994).
   15
     Fed.R.Evid. 404(b).
   16
     Fed.R.Evid. 608(b).
   17
     Fed.R.Evid. 608(b); United States v. Blake, 941 F.2d 334 (5th Cir. 1991).
                                               5
         Finally, we address Riggio’s challenge to the decision by the district court to empanel
an anonymous jury. He complains that he was denied his right to fair trial because the
conduct attributed to him did not rise to the level warranting or justifying an anonymous jury.
Mindful of the standard for empaneling an anonymous jury recently announced in United
States v. Krout,18 we conclude that the use of the anonymous jury in this case was

appropriate.
         We review the anonymous jury issue under the abuse of discretion standard,
according great discretion to the trial court. In Krout we noted the careful and limited use
of this measure but found same constitutional when needed to ensure against a serious threat
to juror safety provided the defendant’s interest in the conduct of an effective voir dire of
prospective jurors and the presumption of innocence are maintained. In determining whether
jurors need protection, the district court should consider the defendant’s involvement in
organized crime, his past attempts at interfering with judicial proceedings, his previous
history of violence, the extent of press coverage, and the likelihood of juror harassment or
intimidation.19
         In the present case, the empaneling of an anonymous jury was not inappropriate.
Considering the indications of Riggio’s organized crime connections,20 his previous instance




   18
       66 F.3d 1430 (5th Cir. 1995).
   19
       United States v. Puccione, 949 F.2d 1183 (2d Cir. 1991).
  20
    On several occasions, the record indicates that Riggio boasted about his connection with
the mafia and, when arrested, he was carrying documents linking him to alleged mob figures.
                                                6
of jury fraud,21 and the nature of the crime charged,22 the district court was justified in
finding that the jury needed protection. Further, the district court took effective steps to
minimize any prejudicial effects associated with an anonymous jury.23
             AFFIRMED.




       21
      Riggio committed fraud in order to serve on another jury, demonstrating a lack of
respect for the judicial process and suggesting that he was capable of and willing to interfere
with the jury system.
            22
       The crimes with which Riggio was charged were substantial enough to cause
apprehension on the part of the jury. Witnesses testified that they were threatened by Riggio.
The district court had a reasonable basis to conclude that similar threats and attempts at
intimidation were likely to be made to the jurors if their identities were known.
  23
    Careful instructions were given to the jurors, explaining that the use of numbers instead
of names for them was standard procedure in criminal cases. This neutral explanation caused
no unfair prejudice to Riggio.
                                              7
