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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).
2

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
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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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