*1 it. We see imposing its discretion abused of discretion.
no abuse imposed. the sentence affirm America, STATES
UNITED
Plaintiff-Appellee, MELINA,
Gregory Defendant- Lee
Appellant.
No. 95-1802. Appeals, Court of
Eighth Circuit. June
Submitted Nov.
Decided *2 31, 1988, and the second on Janu-
December 12,1989. Flaherty appellant ary fires in charged in connection with the The first two indictment. a three-count pursuant charged the defendants counts 844(i) aiding 2 with 18 U.S.C. *3 damage in malicious and abetting each other damage attempted and de- destruction and building used inter- being struction aiding two Each of the and state commerce. represented one of the fires. abetting counts charged also with a The defendants § 371. conspiracy count under 18 U.S.C. guilty pleaded Melina and indictment, charges case trial. At the conclusion proceeded to evidence, district court dismissed the the basis of insufficient conspiracy on count guilty of both found evidence. counts, abetting but Melina was aiding and MN, Cascarano, ar- Minneapolis, Craig E. count, only the second which guilty of found Defendant-Appellant. gued, for A com- January 12 fire. more concerned the MN, ar- Minneapolis, Lillehaug, Lee David circum- facts and the plete recitation brief), Wilhelm, (D. on gued Gerald surrounding the arsons can be found stances Plaintiff-Appellee. affirming opinion in this court’s See United appeal. direct conviction on LOKEN, R. JOHN GIBSON Before 967, 969-70 Flaherty, 76 F.3d States HANSEN, Judges. Circuit Cir.1996). HANSEN, Judge. Circuit II. the final from appeals
Gregory Melina
upon
court1
by the district
judgment entered
A.
abetting arson.
aiding and
his conviction
court
the district
Melina contends
(1)
court erred
the district
claims that
He
Flaher-
his
failing to sever
trial
erred
nontestifying
ease from
failing
his
to sever
argues
first
ty’s. Melina
(2)
errone-
codefendant’s,
district court
violated the
to sever
trial
failure
would have
ously
evidence that
excluded
because,
though Flaherty
even
Bruton
rule
responsible for
party
a third
shown
out-of-
testify,
court
admitted
did not
(3)
fires,
failed to show
government
implicat-
by him that
made
court statements
building that was
any
between
connection
Bruton v. Unit-
See
in the crime.
ed Melina
(4)
commerce,
and interstate
burned
1620,
States,
123,
20
88 S.Ct.
ed
U.S.
391
his con-
insufficient
sustain
(1968).
476
L.Ed.2d
viction.
affirm.
Bruton,
Supreme Court held
In
I.
or more defendants
where two
that in a trial
nontesti-
of a
jointly, the admission
deliberately
are tried
set
of two
ease
out
This
arises
expressly
confession
fying codefendant’s
Hamburger Eddy’s
destroyed
fires
the defen
Lake,
defendant violates
implicates the
Long
Shop (Eddy’s), located
Malt
confrontation
Amendment
dant’s Sixth
by John
Minnesota,
and operated
and owned
jury
gave the
district court
rights, even if
ap-
Flaherty.
occurred
The fires
Charles
the confes-
limiting
consider
instructions
first on
apart,
weeks
proximately two
Minnesota.
the District of
Judge for
District
Kyle,
H.
Richard
The Honorable
only against
sion
the eodefendant
con-
who
We find no Bruton violation here.
1622-23;
fessed.
Id. at
88 S.Ct. at
The statements that Melina challenges do not
Escobar,
United States v.
any
manner on
inculpate
their face
(8th Cir.1995)
Bruton). However,
(applying
but, most, inculpate
at
Melina when consid
“[i]f
eodefendant’s confession
not in-
does
ered with other evidence received at trial.
face,
criminate the defendant on its
does
but
fact, they
do not refer to either the De
evidence,
so
when linked to additional
it
cember
January
fire or
12 fire on
may
limiting
be admitted if a
instruction is which Melina’s conviction rested and do not
given
and the defendant’s name is
any
refer to
wrongdoing at all. Assuming
redacted from the confession.”
incriminating
statements are
Marsh,
(citing
F.3d at 972
Richardson v.
when considered with other evidence re
200, 211,
1702, 1709,
U.S.
107 S.Ct.
trial,
ceived
limiting
district court’s
(1987)). Furthermore,
L.Ed.2d 176
Bruton
effectively
instructions
any
cured
risk of
*4
apply
does not
at all when a eodefendant’s
harm to Melina. See id. at 972.
statements do not incriminate the defendant
either on their face or when considered with
event,
any
In
even if we were to
Escobar,
other evidence.
571
ability
compartmental-
jury’s
dence of
‘for
preference
“a clear
is
There
Koskela,
126
86 F.3d at
evidence. See
ize the
indicted
who are
defendants
joint trials
”
(defendant’s
count sufficient
Shivers,
acquittal on one
66
v.
together.’
to com-
unable
Cir.)
claim that
(8th
v.
to rebut
(quoting
938, 939
F.3d
Zafiro
evidence).
conclude,
534, 537,
partmentalize
113 S.Ct.
States, 506 U.S.
United
Flaherty, that
district court’s
(1993)), cert. de
as we did
317
933, 937,
L.Ed.2d
—
ade-
than
were more
instructions
-,
limiting
116 S.Ct.
nied,
U.S.
prejudice. See
any risk of
Further,
alleviate
(1995).
quate
individuals
L.Ed.2d
at 972.
Flaherty, 76 F.3d
cocon-
as
indictment
charged in an
are
who
matter, be
should,
general
as a
spirators
reject
contention
Accordingly,
Koskela,
together. United
tried
failing to
by
court erred
Shivers,
Cir.1996);
122, 126
F.3d
from codefendant
trial
sever his
preju
showing of
some
Absent
at 939.
F.3d
trial.
conspir
consequence
dice,
no
it is of
by
district
dismissed
acy counts
B.
States, 362
See
court.
Schaffer
(1960)
court
district
945, 4
Melina claims
L.Ed.2d
80 S.Ct.
U.S.
Flah-
despite
excluding
that both
proper
defendants
erred
(joinder of seven
tended
show
the conclu
claimed
erty
count at
and Melina
conspiracy
dismissal
ease).
the arson.
responsible for
party was
a third
government’s
sion
*5
sought to
Flaherty and Melina
Specifically,
de
court’s
the district
review
We
a
juvenile T.E.H. was
that
present evidence
for an
to sever
motion
of a defendant’s
nial
setting
fire that de
in
the
suspect
potential
Bor
of discretion.
abuse
They sug
Flaherty’s restaurant.
stroyed
Cir.1996).
To
1544, 1547
deaux,
F.3d
Eddy’s
T.E.H.,
former
was a
who
gested that
of a motion
denial
court’s
a district
that
show
Flaherty’s son’s
a fire in
had set
employee,
discretion, a defen
of
an abuse
sever was
to
ar
charged with
was
locker. T.E.H.
school
district
that
the
demonstrate
must
dant
Flaherty’s
in
for the fire
in state court
son
in
trials “resulted
the
to sever
failure
to one
locker,
pled guilty
later
but
son’s
Koskela, 86
prejudice.”
compelling
or
severe
the arson
exchange for
burglary in
count of
“when
is satisfied
126. This burden
F.3d at
close of the
being
At
charge
dismissed.
appreciable
deprived of an
is
a defendant
case, Flaherty’s
present
in the
evidence
he
that
a chance
acquittal,
for an
chance
copy of the
a
introduce
sought to
counsel
Id. More
trial.”
in a severed
have had
would
charging
complaint
state court
dismissed
a de
prejudice,
clear
show
specifically, “[t]o
purpose
arson, obviously
for
with
T.E.H.
ir
was
his defense
must show
fendant
may
T.E.H.
creating the inference
of
or
of the codefendant
with
reconcilable
fires
for the
responsible also
been
well have
compartmentalize
to
jury was unable
denied admis
court
Eddy’s. The district
Bordeaux,
at 1547.
the evidence.”
F.3d
Flaherty’s
Although
this evidence.
sion of
fail-
that the
demonstrated
Melina has
sought to introduce
who
the one
counsel
apprecia-
him an
trial denied
his
to sever
ure
objected to
documents,
counsel
Melina’s
acquittal.
an
for
opportunity
ble
admission, and
of
denial
the court’s
to be
appear
do not
defenses
and
of
purposes
assume for
will
we
therefore
contrary, their defens-
irreconcilable; on the
pre
adequately
has
that Melina
discussion
consistent,
both defen-
quite
es were
for our review.
this issue
served
party,
a third
prove that
sought to
dants
court’s denial
review
T.E.H.,
responsible
as
juvenile described
an
for
abuse
this evidence
admission of
of the
made no
has also
Melina
the arsons.
for
at 973.
Flaherty,
F.3d
of discretion.
difficulty in com-
jury had
showing
dissent,
held that
we
fact,
Flaherty, over
evidence,
partmentalizing
by
its discretion
abuse
did not
court
district
with
Flaherty guilty
finding
jury’s verdict
Rule
Federal
under
excluding this evidence
only
guilty
Melina
fires and
regard to both
ruling was
at 973. Our
Id.
Evidence
evi- of
January 12 fire is
respect
to
with
probative
based on the
facts
“the
value We dealt with
precise
this
issue in Flaher-
proffered
of the
ty
slight,”
evidence was
“a
held that
stipula-
similar
made,
tion,
weak offer of proof’ had been
coupled
and “the
with his failure to raise the
fires were not
started
a similar manner.”
issue of interstate nexus either in his motion
Id.
provided
why
has
no
judgment
reason
we
acquittal
of
or
respect
with
should reach
different
jury instructions,
conclusion with re-
was a complete waiver
spect to the identical issue and identical ar-
of
the issue.
gument. Accordingly, Moreover, we reach the same noted that fully in conclusion as we agreed reached with a instruction that stated hold that district court committed no that the interstate nexus could be satisfied abuse of in excluding by way this gas discretion of used to heat the building which under Federal of originated Rule out-of-state, Evidence and this instruc- tion mirrored the upheld instruction we
C.
Ryan. Id.
Flaherty’s stipulation
Because
him,
facts was binding on
stipula-
such
844®,
§
gov
Under
U.S.C.
tion satisfied the interstate
articulat-
burden
ernment must establish that
damaged
ed in Ryan, sufficient evidence
present
property at
issue was used
interstate com
satisfy
the interstate commerce element of
activity
merce or in an
that affected inter
844(i).
arson
under 18 U.S.C.
Id.
state
on Relying
commerce.
— Lopez,
U.S. -,
115 S.Ct.
stipulation,
Melina’s similar
considered
(1995),
L.Ed.2d 626
argues
that the
with his failure to raise the issue of interstate
government presented insufficient evidence
juncture
commerce at any
trial,
during
like-
to establish the interstate commerce element
wise waived the issue for our review. Addi-
844(i).
crime
arson under
tionally,
jury instruction,
ap-
which it
trial,
At
parties
pears
agreed
this case en
that Melina
and certainly did
tered into a fact stipulation
object to,
Ryan.
stating
satisfies
Melina is bound
“Eddy’s
Shoop
Malt
stipulation
[sic] and
facts,
Restaurant was
*6
and like
with,
heated
stipulation,
and otherwise utilized natural
this is sufficient to meet the in-
gas
by
furnished to it
Minnegasco, which terstate commerce burden we described in
gas
natural
Ryan.
purchased
was
Flaherty
from
sources out
While
does
necessarily
not
side of the State and District
dictate the
of Minnesota.”
respect
outcome with
to this is-
Addend,
(Gov’t’s
A—7.)
sue,
at
again
Both defense
Melina has not
why
demonstrated
counsel
government
and
counsel acknowl we should reach
disparate
result with re-
edged
stipulation
that
spect
this
to
was sufficient to
an identical
Having
issue.
stipu-
satisfy the interstate
lated
satisfy Ryan,
commerce element un
to facts
that
explicitly
der this
discussing Ryan
en bane holding
United
by
name when the inter-
Ryan,
States v.
(8th
Cir.1994),
F.3d 361
state commerce issue was being discussed
—
denied,
cert.
U.S. -,
1793,
agreeing
S.Ct.
and
stipulation
the
meets
(1995).
merce] ...,” issue in this case issue, Tr. at argument fails on the merits. He 1003), and Melina’s tacitly counsel agreed. relies on Lopez, arguing government was much, Melina to stating seems admit as and, therefore, in his the Court can draw the Court is brief government that ‘‘[s]ince the agreed to a bound to parties follow what stipu- have stipulation there are (Melina's no adverse 10.) inferences which lated." Br. at inference that every reasonable granting it connection a substantial to show
required from evidence. can be drawn heat used to gas the natural between (8th 1429, 1433 Shoffner, 71 F.3d v. and States Eddy’s was located building in which “only if-we con Cir.1995). reverse willWe contends Melina commerce. interstate must have fact finder a reasonable substantially clude that affect gas does the natural about doubt satisfy a reasonable entertained to fails thus and commerce interstate one the offense’s proof of government’s under requirement commerce the interstate Jen elements.” essential 844(i). § Cir.1996). (8th Hav 1283, 1287 kins, F.3d argument precise rejected this Again, we light most in the the record ing reviewed simply Lopez was holding Flaherty, verdict, conclude favorable at Flaherty, F.3d inapplicable. presented sufficient government that, the Gun-Free unlike we held There 18 U.S.C. under support Melina’s conviction down (18 922(q)) § struck U.S.C. Act School 844(i) § with Janu 2 in connection § and contains at issue arson statute Lopez, the ary 12 fire. requirement jurisdictional explicit an or in interstate be “used property affected each other had known (internal F.3d at 974 foreign commerce.” Although both denied early 1980s. since the omitted). as the statute Because quotations during each other having with contact a similar contain did not Lopez sailed incident, depo- in a Melina stated time of the Lopez element, because jurisdictional last case that Flaherty’s civil sition in evi quantity of discuss did not Court he had seen time explicit satisfy necessary such an dence combined When driving a white Cadillac. element, terms Lopez its jurisdictional testimony that the Flaherty’s wife’s with also United Id. See inapposite. they family had owned white Cadillac the Cir. McMasters, 1397-99 of 1988 September possessed between 844(i) 1996) challenge to facial (rejecting a can be drawn inference an March of 844(i) express has Lopez under in contact Flaherty and Melina “as rejecting an requirement; jurisdictional period that during time other with each issue property claim because applied” Thus, jury could fires occurred. had Supreme Court property and rental reasonably have inferred affects property rental held that previously having contact falsely denied Flaherty had commerce). interstate fires. period of the during time depart decline fires, Heather one after the point At some because, again, simply issue holding on this *7 an unin- sister of who was Westegaard, applicable analysis Lopez’s find not we do about eoconspirator, asked Melina dicted 844(i)’s jurisdictional express to due to happened “Johnny,” which to connection argu- sum, reject Melina’s we In element. erupted vio- Melina Flaherty’s nickname. be his conviction requires that Lopez ment that screaming obscenities began lently and to failed government be reversed very informing her in Westegaard, threats inter- connection with a substantial establish be- would harm physical that specific terms that It in this case. follows commerce state to continued boyfriend if she and her fall her argument reject his broader also vio- Melina’s Given matter. into the inquire prove the to evidence was insufficient there innocuous Westegaard’s response lent ar- of the offense for requirement interstate con- reasonably have jury could question, 844(i). under 18 U.S.C. son guilty conscience had a that Melina cluded himself seeking to distance was D. fire. Flaherty after the in finally contends also linked Physical evidence his con sustain exists to evidence sufficient from Melina’s was seized A blackboard fire. abetting arson. aiding and viction fire. after the years couple of residence claim, the evidence we review evaluating his possess did verdict, Although the blackboard favorable light most in the markings that were discernible to the respectfully naked I dissent from Part IIB of the eye, technology the use of laser revealed opinion today. diagram layout Eddy’s restaurant, of I believe that the court refusing errs in along Eddy’s with local landmarks close to tending allow evidence to show that a third restaurant. Melina admitted that he drew party responsible for the I arson. artic diagram but insisted to law enforcement my ulated fully reasons my dissent officers diagram Eddy’s States v. Flaherty, 974- restaurant; diagram he claimed the repre- (8th Cir.1996). view, In my sented instead a local that he bank and a court abused its discretion in rejecting the party third had intended to rob. The dia- 404(b), evidence under Rule and did not base gram was drawn with such matching detail reasoning its on Rule The of exclusion that of the landmarks, restaurant local prejudicial the evidence was error. however, jury that the easily could have con- cluded it representation fact a of
restaurant and that someone with intimate
knowledge of both the restaurant and the
general area had to making have assisted in diagram. The evidence at trial indicated was the individual who HARMON, Individually Delores and as knew Melina and who also knew the specifi- of Ralph Executrix the Estate of Har cations of the displayed restaurant in the mon, Appellee/Cross-Appellant, diagram. This suggests evidence the reason- able inference and Melina drew diagram discussed arson. America, UNITED STATES of acting Finally, a search warrant executed at Meli- through the FARMERS HOME ADMIN na’s house uncovered containers gasoline of ISTRATION, Department United States oil, and fuel which can be used as accelerants Agriculture; Lloyd, Thomas A. Assis for a fire. government The presented testi- Attorney; tant U.S. Tonsager, Dallas mony that similar accelerants were used in Administration, State Director of the Farmers Home connection with January 12 fire. While Appellan ts/Cross-Appell gasoline and fuel oil are substances are ees. possessed by many society, members Meli- possession na’s substances, of these and the HARMON, Individually Delores and as fact that similar accelerants were used in the Executrix of Ralph the Estate of January arson, simply is some additional Harmon, Appellant, a reasonable could have consid- ered determining guilt. UNITED America, STATES of acting reviewing After all of the evidence through the FARMERS HOME ADMIN light verdict, most favorable to the we con- ISTRATION, Department clude government presented suffi- Agriculture; Lloyd, Thomas A. Assis cient evidence to sustain Melina’s conviction. Attorney; tant U.S. Tonsager, Dallas Put way, another a reasonable fact finder *8 State Director of the Farmers Home Ad could have concluded guilt ministration, Appellees. January beyond 12 arson a reasonable doubt. Accordingly, reject Melina’s argument 95-3420, Nos. 95-3520 and 95-3708. that the evidence was insufficient to sustain Appeals, Court his conviction. Eighth Circuit. III. Submitted Oct. For the above, reasons outlined we affirm Decided Dec. judgment of the district court. GIBSON,
JOHN R. Judge, Circuit
dissenting.