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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15883
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00316-SLB-TMP-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY DEE MCANALLEY,
a.k.a. Tony McAnalley,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(August 27, 2013)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Anthony Dee McAnalley appeals his conviction by a jury for solicitation to
commit arson under 18 U.S.C. § 373. McAnalley argues that the district court
abused its discretion in not admitting certain evidence, in rejecting several of
McAnnalley’s requested jury charges, and in responding to a jury question.
McAnnalley also argues that the cumulative effect of prosecutorial misconduct
denied him a fair trial.
I.
This case arose out of an arson that took place at the Sidelines Sports Bar
and Deli (Sidelines) in Muscle Shoals, Alabama, in December 2010. McAnalley’s
employee, Donald Duncan, was the prosecution’s chief witness at trial, and in
return for his testimony the government agreed not to prosecute. Duncan testified
that McAnalley offered him $5,000 to burn down Sidelines because Ron Jeffreys,
who Duncan believed to be the manager of Sidelines, owed McAnalley $25,000.
Duncan ultimately offered his nephew, Sean Jordan, $2,500 to carry out the arson
instead. 1 Jordan accepted Duncan’s offer, committed the arson, and was paid by
Duncan. Duncan testified that after he told McAnalley that the arson had been
committed by his nephew, Duncan received $100, $1,000, and 1 ounce of
marijuana as initial payments from McAnalley.
1
Jordan testified that Duncan told him that the owner, “Tony,” wanted the place to be burned
down. The property, however, was in fact owned by Metro Properties, run by Kenneth Crump,
and Sidelines itself was owned by Game On, Inc., incorporated in the name of Tad Drake with
Ron Jeffreys as a silent partner.
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As McAnalley explains on appeal, at trial, his defense tried “to show and
argue that the operators [of Sidelines], [Tad] Drake and [Ron] Jeffreys had the real
motive for burning [Sidelines], as their business was failing, [and] they had not
paid debts or the land owner.” For instance, on cross-examination of Kenneth
Crump, the owner of Metro Properties, LLC, and Sidelines’s landlord, McAnalley
elicited testimony that Sidelines sometimes had trouble paying its rent and had not
made a certain $25,000 payment on time.
McAnalley also tried to show that Drake and Jeffreys, not McAnalley, had
benefited from insurance proceeds in the wake of the fire. Drake testified that
Game On had received $56,000 in insurance proceeds. Drake also testified that the
underwriters had included a “Tom McAnalley” on the policy. However, there was
no testimony from any insurance agents, Drake, or McAnalley himself about
whether McAnalley received any insurance money.
II.
McAnalley argues on appeal that he was unable to sufficiently present a
defense relating to Game On’s financial health because the district court abused its
discretion in excluding four months of financial records totaling roughly 1,800
pages. Specifically, when McAnalley sought to have the records entered into
evidence, the court excluded the records under Federal Rule of Evidence 403
because, even if they were relevant, there was undue prejudice and they would
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likely confuse the jury because they were complex, and reflected the finances of
three businesses, when only one was involved in the arson.
“We review the district court’s rulings on admission of evidence for abuse of
discretion.” United States v. Jimenez, 224 F.3d 1243, 1249 (11th Cir. 2000).
Thus, we will affirm unless “the district court has made a clear error of judgment,
or has applied an incorrect legal standard.” Piamba Cortes v. Am. Airlines, Inc.,
177 F.3d 1272, 1306 (11th Cir. 1999) (quotation marks omitted).
A defendant has the constitutional right under the Fifth and Sixth
Amendments to present a defense. United States v. Frazier, 387 F.3d 1244, 1271
(11th Cir. 2004) (en banc). “[A] defendant must generally be permitted to
introduce”: evidence directly pertaining to any element of the charged offense or
an affirmative defense; “evidence pertaining to collateral matters that, through a
reasonable chain of inferences, could make the existence of one or more of the
elements of the charged offense or an affirmative defense more or less certain”;
and/or evidence that “tends to place the story presented by the prosecution in a
significantly different light.” United States v. Hurn, 368 F.3d 1359, 1363 (11th
Cir. 2004). Additionally, “a defendant generally has the right to introduce
evidence that is not itself tied to any of the elements of a crime or affirmative
defense, but that could have a substantial impact on the credibility of an important
government witness.” Id. Typically, a defendant may present evidence of third-
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party guilt. See Holmes v. South Carolina, 547 U.S. 319, 330–31, 126 S. Ct. 1727,
1734–35 (2006) (holding that a state law preventing evidence of third-party guilt
was “arbitrary” and thus “violate[d] a criminal defendant’s right to have a
meaningful opportunity to present a complete defense” (quotation marks omitted)).
In a case involving the arson of an insured building, evidence of the business’s
financial problems may be relevant as proof of the defendant’s motive for
committing the crime. Vicksburg Furniture Mfg., Ltd. v. Aetna Cas. & Sur. Co.,
625 F.2d 1167, 1171–72 (5th Cir. 1980); 2 see also United States v. Utter, 97 F.3d
509, 512 (11th Cir. 1996) (holding that substantial evidence that a restaurant was
having financial difficulties was sufficient circumstantial evidence to support an
arson conviction).
However, “[t]he accused does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under standard rules of
evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653 (1988). Rule
403 provides that relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
2
In Bonner v. City of Prichard, this Court accepted as binding precedent all Fifth Circuit cases
decided before October 1, 1981. 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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And in any event, “error in the admission or exclusion of evidence is
harmless if it does not affect the substantial rights of the part[y].” United States v.
Cameron, 907 F.2d 1051, 1059 (11th Cir. 1990) (quotation marks omitted); see
Fed. R. Evid. 103(a); Fed. R. Crim. P. 52(a). We will therefore reverse only if the
complaining party establishes that the evidentiary ruling resulted in a substantial
harm, thus warranting reversal of the jury’s verdict. Cameron, 907 F.2d at 1059.
Here, the district court did not abuse its discretion when it refused to risk
confusion by admitting complex financial statements that combined, without
designation among each business, figures from two other businesses not involved
in the arson. See Fed. R. Evid. 403.
Also, even if the court erred in not admitting the statements, McAnalley fails
to show that the error affected his substantial rights. See Cameron, 907 F.2d at
1059. According to McAnalley, his purpose in introducing the financial statements
was to alert the jury to Game On’s poor financial state to demonstrate a motive for
Sidelines’s owners to burn it down. McAnalley successfully elicited testimony
from a number of witnesses illustrating Game On’s financial difficulties. It is
unclear what additional information the jury would have gleaned from the more
extensive financial statements that even Drake had trouble deciphering.
McAnalley therefore fails to meet his burden to demonstrate that he was
substantially prejudiced by the district court’s evidentiary ruling.
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III.
McAnalley also argues that the court abused its discretion by rejecting his
three requested jury charges and that the court improperly responded to a question
from the jury. Specifically, McAnalley requested the following three jury charges:
Charge A stated that the government claimed that McAnalley violated the law in
order to obtain insurance proceeds, and that he denied this, as he had no insurable
interest in the property, his name was associated with the insurance policy due to
the mistake of others, and thus he could not have received any proceeds as a result
of the fire. Charge B generally described and discussed the requirement that
someone must have an “insurable interest” in order to receive insurance proceeds
and Charge C directly defined “insurable interest” under Alabama law. The court
did not give McAnalley’s Requested Charges A, B, and C on the basis that they
lacked a foundation in evidence, as there had been no testimony from the subject
insurance company or its agents.
During the jury’s deliberation, it asked the following question of the court:
“We, the jury, are having a difficult time reaching a unanimous decision—we are
not able to determine if Duncan really received pay from McAnalley ($100,
$1,000, “pot”). If McAnalley did pay him, does the record show that his lawyers
refuted that McAnalley paid him anything?” The court informed the jury that it
could not comment on the evidence, and instead reread a large portion of its former
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instructions, including the elements of the offense, the government’s burden of
proof, and the defendant’s right not to testify.
We review a claim that the district court refused to give an instruction for an
abuse of discretion. United States v. Morris, 20 F.3d 1111, 1114 (11th Cir. 1994).
Also, “[a] trial court’s response to a jury’s question is entrusted to its own sound
discretion and a conviction will not be reversed in the absence of an abuse of
discretion.” United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir. 1991).
The jury should be instructed on a theory of the defense, “[a]s long as there
is some basis in the evidence and legal support.” United States v. Zlatogur, 271
F.3d 1025, 1030 (11th Cir. 2001). As the Court explained in United States v.
Blanton:
A district court’s refusal to give a requested instruction constitutes
reversible error if and only if the instruction (1) is correct; (2) is not
substantially covered by other instructions which were delivered; and
(3) deals with some point in the trial so important that the failure to
give this instruction seriously impairs the defendant’s ability to defend
himself.
793 F.2d 1553, 1560 (11th Cir. 1986) (emphasis added) (quotation marks omitted).
Here, the district court did not abuse its discretion by omitting McAnalley’s
Requested Charges, or in issuing its response to the jury’s question. Any
testimony about McAnalley’s alleged waiver or receipt of insurance proceeds took
place outside the presence of the jury, and later was excluded. Beyond that, the
jury did not hear any testimony from an insurance agent about the policy in
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question. Contrary to Requested Charge A, the government’s case did not hinge
on the theory that McAnalley solicited Duncan to commit arson in order to obtain
the insurance proceeds for himself. In fact, the government did not even argue
motive and explained in closing that “we don’t know why” McAnalley solicited
arson. Therefore, Requested Charge A lacked a basis in the evidence, and was
thus, properly rejected. See Zlatogur, 271 F.3d at 1030; Blanton, 793 F.2d at 1560.
For the same reasons, Charges B and C were properly refused as irrelevant.
With respect to the court’s response to the jury’s question, McAnalley’s
argument is without merit, as the court merely informed the jurors that it could not
weigh the evidence for them, and repeated instructions it had already given to the
jury, including the government’s burden of proof.
IV.
Finally, McAnalley asserts that he was denied a fair trial in light of the
cumulative effect of prosecutorial misconduct in his case, including: a conceded
Brady/Giglio 3 violation; the failure to acknowledge a pre-trial stipulation to the
authenticity of documents; the withdrawal of an insurance stipulation; and a
misrepresentation of ownership interests in Sidelines.
We review a prosecutorial misconduct claim de novo. United States v.
Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “To establish prosecutorial
3
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); Giglio v. United States, 405 U.S.
150, 92 S. Ct. 763 (1972).
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misconduct, (1) the remarks must be improper, and (2) the remarks must
prejudicially affect the substantial rights of the defendant.” Id. (quotation marks
omitted). Where the prosecutorial misconduct involves delayed disclosure of
certain evidence, we reverse “only if the defendant can show prejudice.” United
States v. Bueno-Sierra, 99 F.3d 375, 379 (11th Cir. 1996) (quotation marks
omitted). We address a claim of cumulative error by first considering the merit of
each claim individually, and then examining the trial “as a whole to determine
whether the appellant was afforded a fundamentally fair trial.” United States v.
Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).
“Brady requires the prosecution to turn over to the defense any exculpatory
evidence in its possession or control.” United States v. Jordan, 316 F.3d 1215,
1226 n.15 (11th Cir. 2003). “Giglio requires the prosecution to turn over to the
defense evidence in its possession or control which could impeach the credibility
of an important prosecution witness.” Id. at 1226 n.16. “Impeachment evidence
should be disclosed in time to permit defense counsel to use it effectively in cross-
examining the witness.” Id. at 1253.
McAnalley argues that the government’s pervasive misconduct, including an
early Brady/Giglio violation, rendered the trial unfair. First, he argues the
government committed a Brady/Giglio violation when it did not disclose that it had
a deal with Duncan for his testimony and allowed Duncan to testify on direct that
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he “hope[d]” he would not be prosecuted. However, the court did not sanction the
government because the violation was handled after direct, when McAnalley was
allowed to cross-examine Duncan about the deal, and did. Because the district
court timely handled the violation, and the relevant information was revealed to the
jury, McAnalley was not substantially prejudiced. See, e.g., Bueno-Sierra, 99
F.3d at 379–80 (holding that the government’s failure to disclose a key government
witness’s prior inconsistent statement until the seventh day of the trial was
improper, but the defendant was not prejudiced because he was able to fully
explore the issue on cross examination).
McAnalley also argues that the government engaged in misconduct,
improperly allowed by the district court, when the government refused to honor a
pre-trial stipulation as to the authenticity of Game On’s financial records. But the
government’s actions were not improper because it never stipulated to the
admission of these records, and the defense was allowed to question a number of
witnesses about Sidelines’s financial condition. Rather, during a pre-trial hearing,
the government agreed to stipulate to the authenticity of some 1,800 pages of
records, but clarified that it was “not going to stipulate that they’re in evidence.”
The court agreed to the stipulation regarding the documents’ authenticity, but
reserved its right to rule on their admissibility during the trial. On this record,
there was neither misconduct by the prosecution nor error by the court in later
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allowing the government to challenge the evidence on grounds other than
authenticity, such as Rule 403.
McAnalley also argues that the government engaged in misconduct when it
withdrew a stipulation that no insurance proceeds had been paid to anyone,
including McAnalley. Initially, the parties agreed to stipulate that “[t]he
defendant did not make [or has not made] any claim on any insurance policy and
no proceeds have been paid out to any person.” However, the court and the
government later learned through Drake’s testimony that Drake, through Game On,
had actually received proceeds under the policy. Therefore, the government’s
decision not to stipulate to the factually incorrect statement that no insurance
proceeds had been paid to McAnalley or anyone else did not amount to
misconduct. Furthermore, the court agreed to allow McAnalley to illicit testimony
as to whether he had made a claim and instructed the jury that there was “no
evidence of anything in . . . regard” to whether McAnalley received insurance
proceeds. Thus, there was no prejudice due to the failure to stipulate. See
Eckhardt, 466 F.3d at 947
Finally, McAnalley argues that the government misconstrued facts regarding
the Sidelines’s ownership interests, but the record does not support this assertion.
Even if the government had misrepresented the interests, the crux of the
government’s case was not focused on who owned the Sidelines, but rather on
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McAnalley’s role in asking Duncan to set fire to it. See United States v. Baker,
432 F.3d 1189, 1223 (11th Cir. 2005) (pointing to the strength of the government’s
case as a factor in determining whether any errors resulted in prejudice). On this
record, the cumulative effects of any errors resulting from the government’s
actions did not result in the denial of McAnalley’s constitutional right to a fair trial.
For these reasons, we affirm the conviction.
AFFIRMED.
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