United States v. Darlene M. Edwards

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________

No. 97-2935
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Darlene M. Edwards, *
*
Defendant - Appellant. *
___________ Appeals from the United States
District Court for the
No. 97-2943 Western District of Missouri.
___________

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Richard W. Brown, *
*
Defendant - Appellant. *
 ___________

No. 97-3019
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Earl D. Sheppard, also known as *
Skip Sheppard, *
*
Defendant - Appellant. *
___________

No. 97-3022
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Bryan E. Sheppard, *
*
Defendant - Appellant. *

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 ___________

No. 97-3028
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
George Frank Sheppard, also known *
as Frank Sheppard, *
*
Defendant - Appellant. *
___________

Submitted: April 15, 1998
Filed: October 30, 1998
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Before LOKEN and LAY, Circuit Judges, and PRATT,* District Judge.
___________

LOKEN, Circuit Judge.

Early in the morning on November 29, 1988, two Kansas City Fire Department
pumpers arrived to fight two fires at a highway construction site in southeast Kansas
City. The first pumper extinguished a burning pickup truck on the west side of the site
and joined the second pumper on the east side, where an aluminum storage trailer
containing 25,000 pounds of explosives was on fire. The trailer exploded, instantly
killing six firefighters and igniting a second trailer filled with 30,000 pounds of

*
The HONORABLE ROBERT W. PRATT, United States District Judge for the
Southern District of Iowa, sitting by designation.

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explosives, which also exploded. Over seven years later, Darlene Edwards, Richard
Brown, Earl (Skip) Sheppard, Bryan Sheppard, and Frank Sheppard were indicted and
convicted of the capital offense of aiding and abetting arson that caused the deaths of
the firefighters. They appeal their convictions and life sentences. The primary issue is
whether their Confrontation Clause rights as defined in Bruton v. United States, 391
U.S. 123 (1968), and its progeny were violated by the government’s reliance on
testimony by numerous witnesses relating each defendant’s out-of-court admissions of
complicity, and by the district court’s1 refusal to grant either their motions for severance
or mistrial. The court instead allowed government witnesses to replace references in
the admissions to codefendants with neutral pronouns and then instructed the jury to
consider each admission only against the declarant. We affirm.

I. Sufficiency of the Evidence.

The highway construction site was patrolled by two security guards. At 3:15
a.m., one guard thought she saw two people walking down the highway. The guards
looked for trespassers, leaving one of their vehicles, a pickup truck, parked on the west
side. They drove to a nearby convenience store, the Quik Trip, and learned the store
manager had not seen anyone. As the guards were leaving the store, a car pulled up and
the driver yelled there was a fire at the construction site. The guards returned and
reported their pickup truck was on fire and a second fire could be seen on the east side.
At 4:08 a.m., the first trailer exploded, killing the six firefighters.

Investigators concluded the pickup truck fire started when gasoline was poured
into the driver’s side of the cab and ignited, and the trailer fire began in the tire area and
became so hot that the walls of the trailer ignited and caused the ANFO explosives to

1
The HONORABLE JOSEPH E. STEVENS, JR., United States District Judge
for the Western District of Missouri, presided over the trial after the HONORABLE D.
BROOK BARTLETT, United States District Judge for the Western District of
Missouri, withdrew from the case because of illness.

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explode. The investigation into who caused the fires was frustrated by a lack of
witnesses and surviving physical evidence. After years of dead ends, the explosions
were reenacted on a national television program, Unsolved Mysteries, accompanied by
a well-publicized $50,000 reward, extensive local publicity, and a phone number for
reporting tips. Defendants lived in Marlborough, a neighborhood adjacent to the
construction site. Frank and Skip Sheppard are brothers, Bryan Sheppard is their
nephew, Richard Brown is Bryan Sheppard’s best friend, and Darlene Edwards was
living with Frank Sheppard at the time of the explosion. Many callers reported that
defendants had repeatedly boasted of starting the fires. These indictments followed.

The government’s evidence at trial included Darlene Edwards’s 1995 tape-
recorded statement.2 Edwards told investigators that sometime between 1:30 and 2:30
a.m. Bryan Sheppard came to her house and asked if she would take Bryan and Richard
Brown to get gas because their car had run out. Leaving Frank Sheppard asleep,
Edwards drove Bryan and Brown to the nearby Quik Trip where they filled a gas can.
They told Edwards their car was near the construction site, but when she neared the site
her companions explained they planned to set a fire with the gasoline to divert security
guards while they stole from the site. Edwards refused to go with them but agreed to
drop them off. Over defense objections, the district court admitted a redacted version
of this statement against Edwards. Additional evidence against her included three
inmates who testified that Edwards told them, while she was incarcerated with them on
other charges, that she and others had planned to steal tools and equipment from the
construction site to sell or trade for drugs, and that she had driven the others to get gas
to start a diversionary fire and cover up the thefts.

2
Edwards argues the district court committed plain error by admitting a statement
that was not against her penal interest. We disagree. The statement was properly
admitted as the admission of a party opponent under Fed. R. Evid. 801(d)(2)(A). See
United States v. Coco, 926 F.2d 759, 760 (8th Cir. 1991).

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 Fifteen witnesses testified to admissions by Richard Brown, for example, that “he
went down there to steal and on the way down there they were out of gas and had to get
some gas,” that he got mad trying to get into the trailer and lit a fire with gas, and that
they set a pickup truck and then a trailer on fire. Seven witnesses testified to admissions
by Skip Sheppard, for example, that he and others had been at the site to steal, that
“they were stealing tools from the construction site,” that they “set fire to cover up the
stuff they had taken,” and that the “gas came from the Quik Trip station on 71
Highway.” Thirteen witnesses testified to admissions by Bryan Sheppard, for example,
that “they went to steal batteries and they set the fire to cover their tracks and they saw
two security guards and they ran,” and that “he set a fire as a diversion to go steal some
explosives.” One witness overheard Bryan Sheppard say to Frank, “I’m not like you
and the other guys. I can’t live with myself because of the death of them firemen, and
it’s eating me up.” Twelve witnesses testified to admissions by Frank Sheppard, for
example, that “the fire was set as a diversion and that they didn’t know explosives were
in the dump truck,” that “someone had drove him and someone else to get some gas that
they had used to start the fire,” and that “they were down there trying to get into the
trucks and they weren’t able to get anything and decided to pour gasoline on them and
get them on fire.”

Defendants argue the evidence was insufficient because the government did not
introduce substantial independent evidence corroborating their out-of-court admissions.
It is well-settled that “a conviction must rest upon firmer ground than the
uncorroborated admission or confession of the accused.” Wong Sun v. United States,
371 U.S. 471, 488-89 (1963). However, “[w]here the crime involves physical damage
to person or property, the prosecution must [only] show that the injury for which the
accused confesses responsibility did in fact occur, and that some person was criminally
culpable. . . . There need in such a case be no link, outside the confession, between the
injury and the accused who admits having inflicted it.” Id. at 489-90 n.15 (citations
omitted); see also United States v. Jacobs, 97 F.3d 275, 283 (8th Cir. 1996); United
States v. Opdahl, 610 F.2d 490 (8th Cir. 1979). Here, there was physical evidence that

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arson caused the pickup truck fire and circumstantial evidence that arson caused the
trailer fire. Therefore, independent corroboration of the admissions was not required.

Moreover, we reject defendants’ premise that the government’s case lacked
corroborating evidence. Becky Edwards, Darlene’s daughter, testified that she heard
all five defendants planning to steal from the construction site about one week before
the explosion. Investigators found a gas can on the site that did not belong to the
construction contractors, and a witness testified that Frank and Skip Sheppard had many
gas cans as part of their lawn mowing business. A number of witnesses saw the
defendants in various groups in the Marlborough neighborhood before and after the
explosions. One saw Richard Brown’s car driving at high speed a short distance from
the construction site three to five minutes after the first trailer exploded. Another saw
Frank and Skip Sheppard and two others pull up to their mother’s house near the
construction site five to ten minutes after the explosion. Another saw Bryan Sheppard
and Richard Brown around 7:30 a.m., after the explosion; Bryan smelled of gasoline and
smoke and had numerous scratches and abrasions. Taken as a whole, the evidence
tends to establish the trustworthiness of defendants’ many admissions.

Defendants further argue the government failed to prove that fire can cause
ANFO to explode because its opinion evidence to this effect did not meet the standards
of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).3 Daubert was
not argued to the district court, and the contention is without merit. Expert testimony
would assist the jury on this issue, see Fed. R. Evid. 702, and the government’s experts
were well qualified. While admitting that ANFO ordinarily burns without exploding,
one testified, “once ANFO gets superheated and . . . it’s in a confined space, such as
the trailers, they’ll high order, and it’s my opinion that’s how this explosion occurred.”

3
Although the issue was not briefed, we doubt that causing the explosion was
even an element of the government’s case. See United States v. Ryan, 9 F.3d 660, 668
(8th Cir. 1993), aff’d, 41 F.3d 361 (8th Cir. 1994) (en banc).

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The blast cone from the explosion was consistent with this hypothesis, and no more
plausible explanation was put forth. The evidence was sufficient for a reasonable jury
to find that defendants set the fire that caused the fatal explosions.

Finally, defendants argue that inconsistencies between some of their admissions
and other evidence make the admissions unreliable, and also that the evidence only
established mere presence or mere association. We conclude these were issues for the
jury. “To convict under the aiding and abetting statute, 18 U.S.C § 2, the government
need only prove that [each] defendant associated himself with the unlawful venture,
participated in it as something he wished to bring about, and by his action sought to
make the activity succeed.” United States v. Clark, 980 F.2d 1143, 1146 (8th Cir.
1992). Viewing the trial record in the light most favorable to the government, as we
must, we conclude the evidence was more than sufficient to convict each defendant of
aiding and abetting arson in violation of 18 U.S.C. §§ 844(i) and 2.

II. Confrontation Clause Issues.

Prior to trial, the district court denied defendants’ motions to sever the joint trial
based on their contention that introduction of their numerous out-of-court admissions
would violate the Sixth Amendment’s Confrontation Clause as construed in Bruton.
Instead, the court ordered Darlene Edwards’s statement redacted to replace inculpatory
references to her codefendants with neutral pronouns such as “we,” “they,” “someone,”
and “others.” The court also approved the government’s plan to instruct its witnesses
not to mention the names of codefendants when testifying to each defendant’s out-of-
court admissions. During the trial, the court repeatedly instructed the jury to consider
each admission only against the declarant. On appeal, defendants argue their
Confrontation Clause rights were seriously compromised by the government’s reliance
on some fifty-nine witnesses who testified to defendants’ various out-of-court
admissions. No defendant testified at the trial.

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 The principles that frame this issue were summarized in Richardson v. Marsh,
481 U.S. 200, 206-07 (1987):

The right of confrontation includes the right to cross-examine witnesses.
Therefore, where two defendants are tried jointly, the pretrial confession
of one cannot be admitted against the other unless the confessing
defendant takes the stand.

Ordinarily, a witness whose testimony is introduced at a joint trial
is not considered to be a witness “against” a defendant if the jury is
instructed to consider that testimony only against a codefendant. This
accords with the almost invariable assumption of the law that jurors follow
their instructions. . . . In Bruton, however, we recognized a narrow
exception to this principle: We held that a defendant is deprived of his
Sixth Amendment right of confrontation when the facially incriminating
confession of a nontestifying codefendant is introduced at their joint trial,
even if the jury is instructed to consider the confession only against the
codefendant.

In Bruton, a nontestifying codefendant’s confession to a postal inspector specifically
named petitioner Bruton. The Court held that a jury instruction to consider the
confession only against the codefendant was inadequate to protect Bruton’s
Confrontation Clause rights. “[T]here are some contexts in which the risk that the jury
will not, or cannot, follow instructions is so great, and the consequences of failure so
vital to the defendant, that the practical and human limitations of the jury system cannot
be ignored. Such a context is presented here, where the powerfully incriminating
extrajudicial statements of a codefendant, who stands accused side-by-side with the
defendant, are deliberately spread before the jury in a joint trial.” 391 U.S. at 135-36.
The Court left open the question whether a confession or admission would be
admissible against the declarant in a joint trial if it was redacted to eliminate references
to codefendants. See 391 U.S. at 133-34 & n.10.

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 In Richardson, the codefendant’s written confession to police was redacted to
eliminate all references to respondent Marsh. Observing that the jury is more likely to
obey a limiting instruction when the confession is linked to a codefendant only by other
trial evidence, the Court held “that the Confrontation Clause is not violated by the
admission of a nontestifying codefendant’s confession with a proper limiting instruction
when, as here, the confession is redacted to eliminate not only the defendant’s name,
but any reference to his or her existence.” 481 U.S. at 211.

Richardson did not involve the common situation we face here -- redactions that
refer to joint activity with other culprits but eliminate any specific identification of the
declarant’s codefendants. The Supreme Court recently considered a variation of this
problem in Gray v. Maryland, 118 S. Ct. 1151 (1998). The codefendant’s written
confession to police was redacted by replacing specific references to petitioner Gray
with a blank space or the word “deleted” or “deletion.” A police officer read the
redacted confession and then testified that after receiving it, he was able to arrest Gray.
Distinguishing Richardson, a closely divided Court held that this confession falls within
the class of statements to which Bruton’s protections apply. “The inferences at issue
here involve statements that, despite redaction, obviously refer directly to someone,
often obviously the defendant, and which involve inferences that a jury ordinarily could
make immediately, even were the confession the very first item introduced at trial.
Moreover, the redacted confession with the blank prominent on its face, in Richardson’s
words, ‘facially incriminat[es]’ the codefendant.” 118 S. Ct. at 1157 (emphasis in
original). The Court also emphasized the practical aspects of the redaction process:

Additional redaction of a confession that uses a blank space, the word
“delete,” or a symbol, however, normally is possible. Consider as an
example a portion of the confession before us: The witness who read the
confession told the jury that the confession (among other things) said,

“Question: Who was in the group that beat Stacy?

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 “Answer: Me, deleted, deleted, and a few other guys.”
App. 11.

Why could the witness not, instead, have said:

“Question: Who was in the group that beat Stacey?
“Answer: Me and a few other guys.” 118 S. Ct. at 1157.

Defendants argue the government’s repeated use of out-of-court admissions that
“we” or “they” went to the site to steal, and “we” or “they” set the fire, violated Bruton
as construed in Gray.4 Neither Richardson nor Gray discussed the admissibility of
confessions in which codefendants’ names are replaced with a pronoun or similarly
neutral word, as in this case. This court and other circuit courts have consistently
upheld such evidence so long as the redacted confession or admission does not facially
incriminate or lead the jury directly to a nontestifying declarant’s codefendant. See
United States v. Jones, 101 F.3d 1263, 1270 & n.5 (8th Cir. 1996) (use of “we” and
“they”); United States v. Williams, 936 F.2d 698, 700-01 (2d Cir. 1991) (“another
guy”); United States v. Briscoe, 896 F.2d 1476, 1502 (7th Cir. 1990) (“we”); United
States v. Garcia, 836 F.2d 385, 390-91 (8th Cir. 1987) (“someone”). We conclude the
district court’s decision to admit nontestifying defendant admissions, redacted as to
codefendants by the use of pronouns and other neutral words, and accompanied by
appropriate limiting instructions, was consistent with this court’s decisions in Jones and
Garcia and the Supreme Court’s recent decision in Gray.

4
Defendants’ contention on appeal is that the district court erred in denying
motions for severance, separate trials, and mistrials. These issues are reviewed under
an abuse of discretion standard. See United States v. Donohue, 948 F.2d 438, 444 (8th
Cir. 1991). However, the Supreme Court in Gray treated the threshold question
whether the trial court properly construed Bruton and its progeny in admitting redacted
out-of-court declarations as an issue of law, and we do likewise.

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 Unlike use of the word “deleted,” which directs the jury’s attention to an obvious
redaction, referring to joint activity by use of the pronouns “we” and “they,” or by use
of indefinite words such as “someone,” does not draw attention to the redaction and
thus, in most situations, will not be incriminating unless linked to a codefendant by other
trial evidence. See Jones, 101 F.3d at 1270. Here, for example, the evidence included
references to a large cast of characters from the Marlborough neighborhood who were
connected in various ways to the defendants. Some of the admissions inculpated
nondefendants, thereby weakening any inference that words such as “they” and
“someone” referred to the declarant’s codefendants.5 With improper inferences thus
weakened, it was appropriate to rely upon the normal rule that juries are presumed to
obey instructions to disregard the evidence as to codefendants. In addition, this is

5
This is illustrated by the key admissions in the videotaped statement of Darlene
Edwards, the only transcribed statement to authorities introduced at trial and therefore
potentially the most incriminating of the many out-of-court declarations:

Frank and I had come home. . . . Someone come up and said they’d run
out of gas. Wanted to know, could I take them down to get some gas,
right? . . . Okay, and I took them down to Quik Trip. . . . The Quik Trip
at 85th and 71 Highway. Yeah, they went around. They got some gas.
They got in the car. They said the car was up the road. I said, what are
you doing up there? They said, well, we’re just doing 4-wheeling up in
the hills, right? So, we get up there. Like, we’re going to go over here
and over there, and I said, what are you doing? Well, we’re going to steal
something. We’re going, we’re gonna take care of something. I said,
well, look, I’m not staying here and playing if you are playing with
gasoline. I’m not getting my funky ass blown up . . . and I left them there,
period! And then after I had gotten home and gotten in bed. . . . is
probably what must have woke Frank up, you know, when I’d gotten
undressed and got back in bed.

As in Jones, the use of “they” and “someone” did not violate Bruton because “the
manner of presenting the confession and the context [did] not lead the jury directly to
the [co]defendant[s].” 101 F.3d at 1271 n.5.

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not a situation, like the Court faced in Gray, in which additional redaction is normally
possible. When an admission refers to joint activity, it is often impossible to eliminate
all references to the existence of other people without distorting the declarant’s
statement. This was recognized in Gray, where the additional redaction favored -- “Me
and a few other guys” -- has precisely the same effect as the redactions used in this
case. Because joint trials “play a vital role in the criminal justice system,” it is
important to adopt workable redaction standards. Richardson, 481 U.S. at 209.

Having concluded that the district court’s approach to the overall joint trial and
redaction issues was not infected with legal error, we must consider whether the court
in implementing that approach abused its discretion in a way that requires a new joint
trial or separate trials. First, defendants argue that the government’s opening statement
and closing argument require a new trial because the prosecutor undid the effect of the
limiting instructions by urging the jury to use each defendant’s admissions in evaluating
codefendants’ cases. See Richardson, 481 U.S. at 211; compare Jones, 101 F.3d at
1270 n.4, with United States v. Bennett, 848 F.2d 1134, 1142 (11th Cir. 1988). We
disagree. The prosecutor’s opening accurately emphasized that each defendant had
made out-of-court admissions -- “Each of these defendants told multiple persons on
multiple occasions that they did it.” In closing, the prosecutor summarized the testimony
in the same manner it was presented to the jury -- using neutral pronouns. There was
no argument that any out-of-court admission facially incriminated a codefendant, and
no argument that was inconsistent with the court’s cautionary instructions to consider
admissions only against the declarant.

Second, invoking the rule of completeness, defendants argue the district court
erred in prohibiting cross-examination to establish that an out-of-court admission was
exculpatory as to one or more codefendants. For example, one witness testified Richard
Brown said “him and a group of people was there at the explosion.” The phrase “group
of people” was a redaction to avoid incriminating Bryan Sheppard and Skip Sheppard.
The court ruled that counsel for Frank Sheppard could not ask the

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witness if Brown had mentioned him. This ruling was correct for two reasons. First,
the rule of completeness protects only the nontestifying declarant. The rule is violated
“only when the [out-of-court] statement in its edited form, while protecting the sixth
amendment rights of the co-defendant, effectively distorts the meaning of the statement
or excludes information substantially exculpatory of the nontestifying defendant.”
United States v. Smith, 794 F.2d 1333, 1335 (8th Cir.) (emphasis added), cert. denied,
479 U.S. 938 (1986). Second, the rule of completeness does not help Frank Sheppard
here because the only reference to him (by omission) was exculpatory, and exculpatory
out-of-court declarations are not admissible hearsay, even if they include a statement
against the declarant’s penal interest. See Williamson v. United States, 512 U.S. 594
(1994); United States v. Ramsey, 999 F.2d 348, 351 (8th Cir. 1993).6

There are also practical reasons why codefendants should not be able to invoke
the rule of completeness to introduce otherwise inadmissible exculpatory hearsay.
Enforcing the rule rigorously often runs the risk of violating an inculpated codefendant’s
Confrontation Clause rights by leading the jury straight to the conclusion that a
redaction referred to him. See United States v. Long, 900 F.2d 1270, 1280 (8th Cir.
1990). Thus, the district court in this multi-defendant trial was appropriately cautious
in permitting cross-exam seeking to differentiate among the declarant’s codefendants.
Defendants were allowed to elicit that nondefendants were named in an admission to
support the defense theory that others were responsible for the fire, and to clarify the
number of people referred to by a plural pronoun, to negate any inference

6
Darlene Edwards, who as declarant may invoke the rule of completeness, argues
the district court violated the rule by excluding a prior statement she gave police in
which she denied any involvement in or knowledge of the arson. We disagree. The
rule of completeness is limited to writings and only encompasses additional portions
of the same statement. Moreover, the rule does not empower a court “to admit
unrelated hearsay in the interest of fairness and completeness when that hearsay does
not come within a defined hearsay exception.” United States v. Woolbright, 831 F.2d
1390, 1395 (8th Cir. 1987).

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it might refer to all defendants. Some defendants received the benefit of directly
exculpatory statements, such as Darlene Edwards’s statement that she left Frank
Sheppard at home asleep when she took others to get gasoline, and they were permitted
to argue the significance of omissions in the out-of-court declarations. We conclude the
district court did not abuse its discretion in the balance it struck between the
nontestifying declarants’ right to completeness and the nonconfessing defendants’
Confrontation Clause rights.

Defendants next argue the district court erred in denying their motions for mistrial
on the few occasions when lay witnesses forgot their Bruton instructions and blurted out
a codefendant’s name instead of replacing it with a neutral pronoun.7 The government
concedes these were mistakes. The district court immediately instructed the jury to
disregard the blurted testimony, and it twice ordered the testimony stricken from the
record. We have reviewed these instances, individually and cumulatively, and conclude
the district court did not abuse its discretion in denying a mistrial.

Finally, it is well-settled that Bruton errors are subject to harmless error analysis.
See United States v. Miller, 995 F.2d 865, 867 (8th Cir. 1993); Long, 900 F.2d at 1280;
Garcia, 836 F.2d at 391. Darlene Edwards, Richard Brown, and Bryan Sheppard were
virtually unaffected by Bruton issues. None of the blurted redaction failures

7
One witness testified that Darlene Edwards said “at one time Frank had made
plans” to steal from the construction site, and that Edwards “would tell us about the
gas, how she went to get the gas and different things that she did with the other
defendants.” Another witness testified when asked why he had not reported certain
admissions to the police, “it was after me and Richard [Brown] had had a conversation.
I didn’t believe him. I didn’t believe him for one second but he told me at one point
that Bryan Sheppard was in on it.” Another witness testified that Skip Sheppard said
“he and a brother were” at the construction site on the night of the explosion. Another
said that when she asked Frank Sheppard why he had not called the police, he said, “I
can’t turn in my family, my friends.” (Emphasis added.)

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named Edwards or Brown, and only references to “my family, my friends” and “other
defendants” touched on them at all. No defendant objected to the “my family, my
friends” mistake, and the district court struck the reference to “other defendants” and
reminded the jury to only consider the evidence against the confessing defendant. The
one blurted reference to Bryan Sheppard only said he was “in on it,” a relatively
innocuous error in light of his numerous admissions of involvement. None of these
defendants was affected by the district court’s limitations on cross-exam, whereas the
evidence against these defendants was overwhelming. We conclude any Bruton error
was clearly harmless to these three defendants.

Although Frank and Skip Sheppard were more directly affected by the Bruton
issues, we conclude any error was harmless to them as well. Two redaction failures
arguably affected Frank, but the district court’s prompt curative actions reduced any
prejudicial impact. Frank and Skip were most affected by the district court’s limits on
cross-exam, but any prejudice from the restrictions was minor in contrast to the properly
admitted evidence. Twelve witnesses testified to admissions by Frank Sheppard, and
seven witnesses testified to admissions by Skip. As to each, the admissions were
specific, detailed, and consistent.

For all the foregoing reasons, we conclude the district court did not abuse its
discretion in denying defendants’ various motions for mistrial, new trial, and severance.

III. Statute of Limitations and Pre-indictment Delay Issues.

The federal statute of limitations for non-capital crimes is five years. See 18
U.S.C. § 3282. The arson occurred in 1988, more than seven years prior to defendants’
indictments. There is no limitations period for a capital offense, defined as “any offense
punishable by death.” 18 U.S.C. § 3281. The arson statute provides that whoever
commits arson resulting in death “shall also be subject to . . . the death penalty . . . as
provided in section 34 of this title.” 18 U.S.C. § 844(i). Defendants argue their

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prosecutions are time-barred because the death penalty procedures in 18 U.S.C. § 34
were unconstitutional under Furman v. Georgia, 408 U.S. 238 (1972), until amended in
1994, and therefore defendants could not have been subjected to the death penalty for
their 1988 crimes. This argument was rejected in United States v. Manning, 56 F.3d
1188, 1196 (9th Cir. 1995), where the court reasoned that § 3281 “derive[s its]
justification from the serious nature of the crime rather than from a concern about, for
example, what procedural protections those who face a penalty as grave as death are to
receive.” We agree with and follow the Manning decision.

Defendants also argue the district court erred in denying their motion to dismiss
the indictment because the nine-year pre-indictment delay violated their right to due
process. Our cases hold that, to prevail on this claim, defendants have the burden of
proving the delay was unreasonable and actually, substantially prejudiced the defense.
See United States v. McDougal, 133 F.3d 1110, 1113 (8th Cir. 1998); Bennett v.
Lockhart, 39 F.3d 848, 851 (8th Cir. 1994). Relying on Doggett v. United States, 505
U.S. 647 (1992), defendants argue the government should have the burden to prove the
absence of prejudice. This argument is without merit. Doggett involved a challenge to
post-indictment delay under the Speedy Trial Clause of the Sixth Amendment. That
Clause “is wholly irrelevant” to a Due Process Clause challenge to a pre-indictment
delay. United States v. Lovasco, 431 U.S. 783, 788 (1977); accord United States v.
Bischel, 61 F.3d 1429, 1436 (9th Cir. 1995); United States v. Byrd, 31 F.3d 1329,
1339-40 (5th Cir. 1994).

IV. Evidentiary Issues.

A. Bad Acts Evidence. Defendants argue the district court violated Federal Rule
of Evidence 404(b) in admitting testimony regarding their prior drug use and thievery.
One witness testified: “[Darlene] said they stole machinery and different tools from the
construction site before and she sold it in trade for crack cocaine.” This testimony was
admissible under Rule 404(b) because it was relevant to motive -- the

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government’s claim that defendants went to the construction site to steal equipment to
sell to buy drugs. Other witnesses testified that defendants’ admissions occurred during
drug use. Rule 404(b) does not bar evidence that completes the story of the crime or
explains the relationship of parties or the circumstances surrounding a particular event.
See United States v. Moore, 1998 WL 337961 *5 (8th Cir. 1998). The district court did
not abuse its discretion in admitting this kind of background evidence. A jury “cannot
be expected to make its decision in a void -- without knowledge of the time, place, and
circumstances of the acts which form the basis of the charge.” United States v. Moore,
735 F.2d 289, 292 (8th Cir. 1984).

Darlene Edwards and Frank Sheppard argue the district court erred in admitting
testimony that they admitted burning her car six weeks before the arson to collect
insurance proceeds. The government offered this evidence to prove motive -- that these
defendants needed money to buy drugs. The district court did not abuse its broad
discretion in concluding the prejudicial effect of this evidence did not outweigh its
probative value. See United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995)
(standard of review).

B. Limits on Cross-Examination. Darlene Edwards argues the district court
erred in limiting her cross-exam and impeachment intended to support Edwards’s theory
that one of the construction site security guards committed the arson to divert attention
from the guard’s insurance fraud. Bryan Sheppard argues the district court erred in
restricting cross-exam regarding the criminal history of various government witnesses.
Frank Sheppard argues the district court erred in not allowing cross-exam to impeach
a witness by showing that her out-of-court statement that Darlene Edwards had taken
a polygraph test was untrue. The district court allowed defense counsel to extensively
cross-examine the government’s witnesses. The rulings in question were not an abuse
of the court’s substantial discretion regarding issues of relevance, remoteness in time,
and collateral impeachment. See United States v. Caldwell, 88 F.3d 522, 524 (8th Cir.
1996) (standard of review).

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 C. Excluded Polygraph Examinations. Bryan Sheppard and Richard Brown
argue the district court erred in excluding favorable results of polygraph examinations
without conducting a hearing under Daubert v. Merrell Dow, 509 U.S. 579 (1993). The
record on appeal does not reflect that defendants preserved this issue by offering the
exam results into evidence and obtaining a ruling on their admissibility. If the district
court did bar the admission of polygraph results, that ruling cannot be plain error. See
United States v. Scheffer, 118 S. Ct. 1261 (1998).

D. Admission of Victim Photographs. The district court excluded a number of
photographs of the deceased firefighters but admitted four of the less gruesome
photographs. Defendants argue this was error because death was not an element of the
crime and the photographs were too prejudicial. At the time this issue arose at trial, the
court had advised counsel that it considered causing the firefighters’ deaths to be an
element of this crime under 18 U.S.C. § 844(i). In objecting to the photographs,
defense counsel noted our decision to the contrary in United States v. Ryan, 9 F.3d at
668, but did not offer to stipulate that the government need not prove defendants caused
the victims’ death. Therefore, the photos were clearly relevant when admitted. The
court did not abuse its discretion in concluding their probative value was not
substantially outweighed by the risk of unfair prejudice. See Fed. R. Evid. 403; Walle
v. Sigler, 456 F.2d 1153, 1154-55 (8th Cir. 1972).

E. Cross-Exam on Failure To Call a Witness. Richard Brown lived with his
grandmother. His defense was that he was home asleep at the time of the explosions.
His witnesses included a neighbor who testified to seeing him after the second
explosion, dressed only in pants, with an elderly woman. Brown also called his uncle
to rebut testimony that Brown’s truck was seen speeding down the road moments after
the first explosion. On cross-exam, the uncle acknowledged that Brown’s grandmother
had been called to testify and had come to the courthouse. The grandmother never
testified, and during closing argument the government drew attention to her by saying,
“Why do you need grandma to alibi for you. Aren’t you a big boy now?” Brown

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argues this was improper cross-exam and closing argument warranting a new trial. We
disagree. “The prosecutor is free to comment on the failure of the defendant to call an
available alibi witness.” United States v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983).

F. False Testimony Issues. Bryan Sheppard argues the government violated his
right to due process by deliberately or negligently presenting false testimony. A
government witness testified that Bryan made admissions at a home in the fall of 1989,
a time when he was in prison. The district court denied Bryan’s motion to strike this
testimony as impossible but allowed defense counsel to effectively impeach the witness
as to the date. Later in the trial, the error in the date was confirmed by the admission
of jail records. The government argued in closing that the witness was mistaken as to
the date but not the substance of the testimony. This episode falls well short of
establishing that the government either knowingly elicited false evidence or allowed
false evidence to go uncorrected. See Giglio v. United States, 405 U.S. 150, 153
(1972); United States v. Martin, 59 F.3d 767, 770-71 (8th Cir. 1995).

Defendants also argue the government elicited false testimony that batteries were
stolen from the construction site. The argument is based upon supposedly “undisputed”
testimony of the construction contractor and subcontractor that nothing was ever stolen
from the site. However, we agree with the district court that the evidence on this issue
was contradictory. The defendants’ out-of-court admissions included claims they had
successfully stolen items from the site, including batteries. There was also evidence the
construction workers did not keep track of used batteries. Thus, defendants failed to
establish the government knowingly elicited false testimony on this issue.

V. Other Trial Issues.

A. A Discovery Issue. Defense counsel agreed in the pretrial Omnibus Hearing
Report to provide the government, at least five days prior to trial, the names and
addresses of their trial witnesses and copies of all statements made by each witness.

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Bryan Sheppard’s witness list included “[a]ny and all witnesses previously endorsed by
the Government.” When the government learned that defense counsel had recorded
investigatory statements from some government witnesses, it moved to compel
production of the statements as required by the Omnibus Hearing Report. Bryan
Sheppard objected that these statements were merely for cross-examination and the
listing of endorsed government witnesses was mere boiler plate. The district court
concluded the statements were within the scope of the Hearing Report and compelled
their production, and we denied Bryan’s petition for a writ of mandamus on this issue.
On appeal, Bryan argues the district court’s order to produce violated the Jencks Act,
18 U.S.C. § 3500, and Fed. R. Crim. P. 26.2. We disagree. It may be that the
government would not have been entitled to compulsory discovery of these witness
statements. See Fed. R. Crim. P. 16(b)(2), 26.2(a); cf. United States v. White, 750 F.2d
726, 728 (8th Cir. 1984). But that did not bar counsel from agreeing to mutual pretrial
discovery in the Omnibus Hearing Report. The district court’s order interpreting and
enforcing that agreement was not an abuse of its substantial case management
discretion.

B. An Alibi Instruction Issue. Skip Sheppard argues the district court violated
his right to have the jury consider a legally and factually supportable defense theory
when it denied his requested alibi instruction: “[if], after considering all the evidence,
you have a reasonable doubt that defendant was present, then you must find him or her
not guilty.” See Eighth Circuit Pattern Jury Instruction No. 9.07. The court denied this
request on the ground that Sheppard could be convicted of aiding and abetting an arson
without being present at the site. There is certainly support for that analysis. See
United States v. Agofsky, 20 F.3d 866, 871-72 (8th Cir. 1994). On the other hand, the
government’s factual theory was that Skip Sheppard actually participated in the arson
at the site, and Skip’s alibi evidence -- testimony by his ex-girlfriend -- tended to refute
that theory. With the merits of the alibi instruction issue rather closely balanced, we
reject the contention on appeal for the reasons stated in United States v. Dawn, 897
F.2d 1444, 1450 (8th Cir. 1990): “The alibi defense was argued in closing, the jury

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was clearly instructed that the government had to prove all elements of the charge
beyond a reasonable doubt, and the evidence against [Skip Sheppard] was relatively
strong. The error, if any, was clearly harmless.”

C. The Motion to Recuse. Frank Sheppard argues the district court abused its
discretion in denying his motion for a new trial and recusal because a pattern of judicial
comments and rulings reflected a bias calling into question the overall fairness of the
trial. We have reviewed the rulings cited and conclude they do not reflect judicial bias.
Nor do they establish that Sheppard was denied a fair trial. See United States v. Turner,
975 F.2d 490, 492-93 (8th Cir. 1992) (standard of review).

VI. Sentencing Issues.

A. Life Imprisonment. Defendants argue they were improperly sentenced to life
in prison under 18 U.S.C. § 844(i) because the firefighters proximately caused their own
deaths by approaching the burning trailer despite being warned of explosives.
Defendants challenge the district court’s finding that the firefighters were not aware of
the explosives in the trailers. We review that sentencing finding for clear error. See
United States v. Berndt, 86 F.3d 803, 810 (8th Cir. 1996). There was evidence that
firefighters called to the construction site for previous fires were cautioned there were
explosives on the scene. However, there was conflicting evidence whether the deceased
firefighters were warned of explosives in the trailers that exploded. On this record, the
court’s finding that the firefighters were unaware of the explosives and therefore not
negligent in continuing to fight the trailer fire was not clearly erroneous.

B. Downward Departure. The district court applied U.S.S.G. § 2A1.1, the first-
degree murder guideline, to determine defendants’ base offense level for arson resulting
in death. See U.S.S.G. § 2K1.4(c). Under § 2A1.1, the court may depart downward
“[i]f the defendant did not cause the death intentionally or knowingly.” Richard Brown
argues the district court erred in not departing downward for this reason. The court

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was aware of its discretion to depart downward. Therefore, its refusal to depart is not
reviewable on appeal. See United States v. Tocco, 135 F.3d 116, 131 (2d Cir. 1998).

C. Evidence of Actual Innocence. Frank Sheppard argues the district court erred
at sentencing by not admitting polygraph examination results suggesting he was
innocent, and testimony suggesting he was too drunk to have committed the crime. It
is not clear from the sentencing record that this issue was properly preserved. In any
event, the court did not abuse its discretion in excluding evidence of actual innocence
at a non-capital sentencing. Cf. Franklin v. Lynaugh, 487 U.S. 164, 172-74 (1988).

We have carefully considered the other issues and arguments raised by
defendants on appeal and conclude they are without merit. The judgments of the district
court are affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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