United States v. Marcus Davis

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2156
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United States of America, *
*
Appellee, *
*
v. *
*
Marcus Q. Davis, *
*
Appellant. *
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Appeals from the United States
No. 07-2158 District Court for the
___________ Southern District of Iowa.

United States of America, *
*
Appellee, *
*
v. *
*
Stephen L. Edwards, *
*
Appellant. *
___________

Submitted: January 16, 2008
Filed: July 25, 2008
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Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
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WOLLMAN, Circuit Judge.

Marcus Davis and Stephen Edwards were convicted of one count of malicious
use of fire causing personal injury and death in violation of 18 U.S.C. § 844(i). On
appeal, Davis and Edwards argue that there was insufficient evidence to support the
verdict and that the district court1 made several errors concerning the use of out-of-
court statements admitted into evidence during the trial. We affirm.

I. Background

On March 6, 2000, a fire began at 845 Cross Park Avenue, a twelve-unit
apartment complex in Iowa City, Iowa. Kurtis and Laura Miller were residents of the
building. As a result of the fire, Laura suffered serious burns; Kurtis died as a result
of soot and smoke inhalation and thermal injuries. After determining that the fire had
been set intentionally by pouring gasoline in front of apartment 3C, law enforcement
officials investigated the circumstances surrounding the fire for more than five years.
Davis and Edwards were indicted in September 2005. Their motions to sever the trial
were denied, and a joint trial began on June 26, 2006.

Because we are reviewing the record for the sufficiency of the evidence, we
state the evidence presented at trial in the light most favorable to the jury verdict.
Davis lived in the apartment building directly behind the building where the fire was
set. Edwards was a frequent guest in Davis’s apartment. The resident of apartment
3C, Jan Ballew, had engaged in an on-going dispute with Davis regarding the volume
level of Davis’s music. Initially, Ballew complained about the noise from Davis’s
apartment to her property manager, who advised her that she needed to call the police,
which Ballew did numerous times in 1999. Thereafter, Ballew spoke with Davis’s
wife, and the two agreed that Ballew should let the Davises know when the music was

1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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too loud rather than call the police. Ballew attempted to comply with this agreement,
making no calls to the police during the winter of 1999-2000, and personally visiting
Davis’s apartment when the music was too loud. During these visits, Davis responded
to Ballew’s complaints with profanity. Ballew decided that she would no longer
inform Davis or his wife that the noise was too loud and would instead call the police.
Ballew informed Davis’s wife of this decision.

On March 4, 2000, at 11:12 p.m., Ballew called the police to report that the
music coming from Davis’s apartment was too loud. The police responded by visiting
Davis’s apartment. On that same evening, or on a similar occasion when the police
were leaving after responding to a noise complaint, Davis’s mother-in-law, Caroline
Bennett, arrived at the apartment and asked Davis what had happened. Davis
appeared angry and said, “Mama, she always calling the police on me. I’m going to
get her.”

On March 6, 2000, Ballew made another complaint to the police regarding the
noise from Davis’s apartment. Ballew asked the police to visit her apartment to assess
the noise level before they visited Davis’s apartment. Two officers arrived at
Ballew’s apartment at approximately 9:10 p.m., and after agreeing that the music was
too loud, they visited Davis’s apartment. The officers informed Theophilus Davis,
Marcus Davis’s cousin, that they had received a noise complaint. Theophilus pointed
to Ballew’s apartment and said, “was it her?” The officers did not disclose the
identity of the complainant, but told Theophilus to keep the music down and issued
a warning for violating the noise ordinance. The officers left at approximately 9:22
p.m. Marcus Davis later stated that he “shut the music off in [the officer’s] face.”
Davis asked his mother-in-law to take his wife to her house for the night. Davis’s
mother-in-law did not know why Davis made this request, as he had never made such
a request in the past, and she did not comply.

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 After Ballew had gone to bed, she heard a loud bang at her front door. She
went to investigate and realized there was a fire. She went out to her deck and tried
to shut the door to the deck, but was unable to because of the heat. She saw Davis on
the ground below her apartment, and he asked, “What’s happenin’?” Ballew said,
“What’s it look like?” Davis responded, “You have to learn to get along with people.”
Thereafter, Ballew was rescued by firefighters. Ballew later identified Davis as the
person below her apartment, and she described his statement as a threat.

At approximately 9:45 p.m., the two officers who had responded to Ballew’s
noise complaint received a dispatch call regarding the fire. They returned to the
apartment building at approximately 9:50 p.m. One of the officers entered the
building and began pounding on the apartment doors on the first floor. Upon exiting
the opposite side of the building, the officer nearly kicked the door into Davis, who
appeared to be entering the building and was wearing an Iowa Hawkeyes shirt. Davis
entered the building, but was told to leave by the other officer who was inside. Davis
ignored the officer and attempted to grab his flashlight. As the officer pulled the
flashlight away, Davis said, “I’m still going up there,” and ran up the stairs. The
officer followed, but the two were not able to stay long because of their difficulty in
breathing.

Thereafter, Davis returned to his rear patio and continued barbecuing. Later,
while still wearing the Iowa Hawkeyes shirt, Davis initiated contact with one of the
officers who had responded to the noise complaint and was at the scene of the fire.
Davis stated that, “that lady needs to learn to get along with people.” Davis also said
that his father was a firefighter and that he (Davis) could have saved people in the
building if he had had a wet rag over his mouth. Edwards was also on the patio during
this conversation.

On another occasion that evening, Davis was back at the scene of the fire and
made contact with another officer. When asked by the officer for identification, Davis

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responded that he did not have any but that his name was Jared Q. Davis and that he
lived in Chicago. Davis gave his correct birth date and the location where he could
later be found. Davis admitted that he told Ballew that she needed to learn to get
along with people better. He also commented that every time he had a barbecue,
Ballew called the police. Thereafter, Davis went back toward his apartment. Davis
later admitted that he had provided the officer with a false first name, but claimed that
he had done so because of an outstanding traffic warrant in Illinois.

Additional law enforcement arrived to investigate the fire. One of the officers
was assigned to interview witnesses and to speak with Jared Davis. He went to
Davis’s apartment and talked with Davis’s wife, who told him that she did not know
anyone by the name of Jared Davis and that no one in the apartment had been near the
fire. The officer saw a man in the living room, sitting on the couch and wearing a
white shirt and blue pants. The officer returned to the apartment a short time later,
after having spoken with other officers familiar with the residents of Davis’s
apartment. When Davis’s wife answered the door, the officer observed that there was
a different man sitting on the couch in the living room, so he asked where the first
man had gone. Davis’s wife initially denied that there had been another man, but then
claimed that he had left. The officer indicated that law enforcement had been
watching the apartment and had not observed anyone leaving. At that point, Davis
came downstairs and was recognized by the officer as the person he had first seen
sitting on the couch even though Davis was now wearing different clothes. Davis said
that he was not Jared Davis and that he did not know anyone by that name. Davis and
his wife gave their consent to allow the officers to look around the apartment. The
officers found Edwards upstairs but could not locate Jared Davis.

Later that evening, two officers independently identified Davis as Jared Davis.
Nevertheless, Davis denied that he was Jared and denied that he had spoken with the
officers earlier that evening. Even after the officers obtained Davis’s identification
and noted that his middle initial, last name, and date of birth were the same as the

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information given by the so-called Jared Davis, Davis continued to deny that he had
previously identified himself as Jared. Thereafter, Davis agreed to come to the police
station, where he believed that he would be fingerprinted, and admitted that he had
falsely identified himself as Jared Davis. In an interview a few hours later, Davis also
admitted that he was at his apartment when the police first arrived looking for Jared
Davis and that he had changed his clothes. The officers told Davis that they believed
he changed his clothes so that the officers at the scene of the fire would not recognize
him, to which Davis responded, “That’s exactly why I did that.”

During police questioning, Davis continued to complain about Ballew and how
she had repeatedly called the police on him. Davis referred to her as “Aunt Hagatha”
and said that she was miserable and wanted everyone else to be miserable. Davis was
informed of the seriousness of the fire given the death of Kurtis Miller. Davis
commented that Miller’s death was a homicide, but he denied involvement in the fire.

During an interview with law enforcement, Edwards told a detective that he was
at Davis’s apartment when the police responded to the noise disturbance call.
Edwards claimed that he was not present when the fire began because he had gone to
a gas station with D’Wana Porter. After the interview, Edwards called Porter and told
her that detectives would be talking with her. Porter indicated that she had already
been visited by detectives and that she had told them she was not with Edwards before
the fire. At that point, Edwards terminated the conversation. Later that day, Edwards
called Holly Skretta and told her, “If anyone asks, I was with you.” When Skretta
asked for clarification, Edwards said, “Last night, if anyone asks, I was with you.”
Skretta complied with Edwards’s request and falsely told investigators that she was
with Edwards at the time of the fire, when in fact she was at work. After being
interviewed, Skretta received a call from Edwards. Edwards was wondering what the
police wanted to know and Skretta told him what she told the police. Skretta
eventually told officers that Edwards was not with her at the time of the fire. When
Edwards found out about this, he was upset with her and warned her that if anyone

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asked any more questions she should shut her mouth. Skretta testified that Edwards
grabbed her arm during this conversation, which frightened her.

During a subsequent interview with law enforcement, Edwards claimed to be
unable to remember what he did on the day of the fire because he had had a lot to
drink and was “fucked up.” He said that on the day of the fire he had been at Skretta’s
house, Porter’s house, and Ava Henderson’s house. He reiterated that he had left
Davis’s apartment right after the police arrived regarding the noise complaint and that
he had gone to the gas station with Porter. He related how many packs and what
brand of cigarettes he had purchased. Initially, Edwards said that he did not see any
fire trucks until he returned from the gas station. Later, Edwards said that he saw two
fire trucks when he left Davis’s apartment. When questioned about this discrepancy,
Edwards admitted that he was present during the entirety of the fire and that he had
observed the fire. This version of the facts matched the information from a gas station
receipt indicating that cigarettes were purchased at 10:27 p.m., more than forty
minutes after the fire began. Edwards also indicated that the noise complaint likely
came from the lady next door because she complained about that a lot. In later
interviews, when officers told Edwards about the seriousness of the fire, Edwards
responded, “Yeah, I know someone died in the fire, but I didn’t do it.” He further
stated, “We don’t give a fuck. All we give a fuck about is kickin’ it.” Edwards later
admitted that he knew what had happened with the fire but that he wasn’t going to tell
law enforcement because it was their job to figure it out.

In late 2002 and early 2003, Edwards was living with his girlfriend, Betty Jo
Thompson. Thompson had heard rumors about Edwards’s involvement in the fire and
asked him about it. Though Thompson could not remember Edwards’s exact words,
she testified that one evening during their relationship Edwards admitted that he was
involved in the fire and that, “we started the fire.” She also testified that Edwards
stated, “It wasn’t to hurt anybody, to murder anybody. It wasn’t to kill anybody. It
was to get someone to come out of the house.”

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 Two years after the fire, Donte Lindsey contacted the police with information
regarding the fire. He stated that a couple of days before the fire he was visiting
Davis’s apartment when the police arrived in response to a noise violation. After the
police left, he overheard Davis and Edwards talking about the complaint and
indicating that “they would handle it.” Lindsey also stated that on the evening of the
fire he returned to Davis’s apartment building from the gas station down the block.
As it was getting dark outside, he saw Davis exit the front door of Ballew’s apartment
building and walk around to the back of the building, toward his own apartment.
Edwards met up with Davis, and they both walked toward Davis’s apartment. Shortly
thereafter, Lindsey saw smoke coming out of Ballew’s apartment building.

During a police interview in February of 2006, Donna Bell stated that on the
night of the fire she was inside Davis’s apartment when she heard sirens outside and
heard the front door open. Davis and Edwards entered the kitchen and Davis changed
his clothes. Bell asked, “What the hell did you do?” Davis and Edwards did not
respond.

Donna Bell and Merriam Knight are Joyce O’Neal’s daughters. O’Neal was
present during Donna’s interview in February 2006, and she (O’Neal) told the police
that two days after the fire she went to Davis’s apartment with Merriam. O’Neal, who
had known Davis for only a few weeks or months, asked Davis how he was doing, to
which Davis responded, “Not so good, Mom. I didn’t mean for it – I didn’t mean for
it to happen like this. I was only trying to scare the old lady because every time our
music – we would turn our music up, she would always call the police on us.”

Both defendants filed a motion in limine to prevent the government from using
statements attributed to one defendant against the nondeclarant codefendant. The
district court stated that it “anticipates that the government will elicit testimony
carefully to ensure that statements made by one defendant do not reference the non-
declarant, co-defendant.” The district court permitted defense counsel to object to the

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admission of statements attributed to one of the defendants and allowed defense
counsel to make the strategic choice whether they wanted to object at every
opportunity or to object the first time a statement was admitted in the course of each
witnesses’s testimony. Defense counsel chose to object once per witness and to have
the limiting instruction repeated at that time.

During the government’s rebuttal closing argument, the prosecutor stated,
“ladies and gentlemen, they even confessed to it.” The prosecutor then displayed a
demonstrative aid, which he referred to as “Exhibit K,” even though it had not been
admitted as a trial exhibit,2 and had not been published to defense counsel as required
by the local rules. The aid consisted of a power point slide that showed side-by-side
statements attributed to each of the defendants. On the left was the statement
attributed to Davis by O’Neal: “Not good mom. I didn’t mean for it to happen like
this. I was only trying to scare the old lady because every time we played our music
she called the police.” On the right side was the statement attributed to Edwards by
Thompson: “It wasn’t meant to hurt anybody, to murder anybody. It wasn’t to kill
anybody. It was to get someone to come out of the house.” After discussing each of
the statements, the prosecutor concluded his argument by stating, “The government
has proven beyond a reasonable doubt that Marcus Davis set a gasoline fire on the
third floor of 845 Cross Park to scare the old lady. And Stephen Edwards was right
there helping him. ‘It wasn’t meant to kill anybody.’ And look how similar their
statements are.” Neither defendant objected to these statements.

Edwards and Davis made motions for judgment of acquittal and motions for a
mistrial based upon the prosecutor’s use of “Exhibit K.” On the first day of
deliberations, the jury informed the court that it was deadlocked. The following day,
the jury returned a verdict convicting both defendants. Thereafter, both of the

2
After the trial, the government filed the demonstrative aid as Exhibit 90.

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defendants filed a motion for a new trial. The district court denied the defense
motions and the defendants were subsequently sentenced to 360 months in prison.

II. Sufficiency of the Evidence

Davis and Edwards argue that their convictions are not supported by sufficient
evidence and that the district court erred in denying their motions for judgment of
acquittal and their motions for a new trial.

A. Motion for Judgment of Acquittal

We review de novo the district court’s denial of a motion for judgment of
acquittal. United States v. Sturdivant, 513 F.3d 795, 800 (8th Cir. 2008). “Viewing
the evidence most favorably to the government, resolving evidentiary conflicts in the
government’s favor, and accepting all reasonable inferences from the evidence
supporting the jury’s verdict, this court affirms if the evidence at trial is sufficient to
sustain a conviction.” Id. In reviewing a motion for judgment of acquittal, we must
defer to the jury’s determination of witness credibility. Id.

Davis and Edwards argue that the evidence presented at trial equally supports
innocence and guilt and therefore is insufficient to uphold the jury verdict. See United
States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996) (“[W]here the government’s
evidence is equally strong to infer innocence as to infer guilt, the verdict must be one
of not guilty and the court has a duty to direct an acquittal.” (alternation in original)
(internal quotation omitted)). We do not agree.

Davis contends that his presence at the scene of the fire is not incriminating
because he lived nearby and that his comment that Ballew needed to learn to get along
with people was understandable because Ballew had spoken to him in a nasty manner.
Davis also contends that his false identification of himself as “Jared Davis” should be

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excused because he provided the false name because of an outstanding warrant and
did provide his correct middle initial, last name, and date of birth. Davis further
argues that he should be given credit for attempting to rescue people from the fire.
Edwards contends that he was merely a guest at Davis’s apartment at the time of the
fire, that he had no motive to start the fire, and that his incriminating statements
indicated that he felt bad that someone had been hurt in the fire.

Although Davis and Edwards have provided alternative explanations for some
of the incriminating evidence presented at trial, we must accept all inferences in favor
of the government. See Sturdivant, 513 F.3d at 800. The evidence indicated that
Davis harbored animosity toward Ballew, he was in the proximity of the fire when it
started, and he tried to conceal his identity by providing false information to law
enforcement and by changing his clothes several times during the course of the
evening. There was also evidence that Davis made incriminating statements regarding
his involvement in the fire. The fact that Davis voluntarily spoke with law
enforcement and that he attempted to rescue people from the fire does not negate the
incriminating evidence against him. The evidence regarding Edwards indicated that
he was in the vicinity of the fire when it was started, that he tried to arrange a false
alibi, that he did not cooperate with law enforcement even though he said that he knew
what happened with the fire, and that he made incriminating statements regarding his
involvement in the fire. In light of the totality of the circumstances, we conclude that
the evidence does not equally support innocence and guilt and that it is sufficient to
support the jury’s verdict. See Davis, 103 F.3d at 667 (to determine the strength of
the evidence, we look at the totality of the circumstances).

B. Motion for New Trial

We review the district court’s denial of a motion for new trial for abuse of
discretion. Sturdivant, 513 F.3d at 802. “A district court abuses its discretion if it
fails to consider a factor that should have been given significant weight, considers and

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gives significant weight to an improper or irrelevant factor, or commits a clear error
of judgment in considering and weighing only proper factors.” United States v.
Bertling, 510 F.3d 804, 807 (8th Cir. 2007) (internal quotation omitted). A motion for
a new trial based upon the weight of the evidence is disfavored, and a new trial should
not be granted simply because we would have reached a different verdict. Id. at 808.
Nevertheless, “[t]he court may grant a new trial motion where it finds that the verdict
is contrary to the weight of the evidence . . . where the evidence presented weighs
heavily enough against the verdict that the court believes a miscarriage of justice may
have occurred.” United States v. Smart, 501 F.3d 862, 865 (8th Cir. 2007) (second
alteration in original) (internal quotations omitted). In making this determination, the
district court may weigh the evidence and evaluate the credibility of the witnesses, but
the “authority to grant a new trial should be exercised sparingly and with caution.”
Sturdivant, 513 F.3d at 802 (internal quotation omitted).

Davis and Edwards were convicted of violating 18 U.S.C. § 844(i), which
states:

Whoever maliciously damages or destroys, or attempts to damage or
destroy, by means of fire or an explosive, any building, vehicle, or other
real or personal property used in interstate or foreign commerce or in any
activity affecting interstate or foreign commerce shall be imprisoned for
not less than 5 years and not more than 20 years, fined under this title,
or both . . . ; and if death results to any person, . . . shall also be subject
to imprisonment for any term of years, or to the death penalty or to life
imprisonment.

The defendants argue that the district court abused its discretion in denying their
motion for a new trial because there was insufficient evidence that they were
responsible for starting the fire. Specifically, they assert that the government did not
have any physical evidence linking them to the scene of the crime and that the
government’s witnesses faced serious credibility problems. They note that O’Neal did
not come forward until February 2006, when she was present during her daughter

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Donna’s interview with the police, and that Donna, who was having financial
problems at the time, asked about a reward for providing information about the fire.
They attack Betty Jo Thompson’s credibility by pointing out that she had had a brief
romantic relationship with Edwards almost two years after the fire and became upset
when she found out he was seeing other women. The defendants also assert that these
statements were not true confessions because they were not made directly to the police
and were not sworn statements. Additionally, Donte Lindsey, the only witness that
placed Davis and Edwards at the scene of the fire, admitted that he had been drinking
and smoking marijuana the night of the fire and contacted the police with information
about the fire only after he was charged with a crime and seeking a deal. His
testimony also contained inconsistencies, such as his claim that he saw the defendants
standing near a pool before it was dark outside, when in fact no pool exists in the
vicinity where he placed the defendants, and the fact that the fire did not start until
after dark.

The fact that the government’s case is based upon circumstantial evidence does
not by itself necessitate a new trial. United States v. Jiminez-Perez, 238 F.3d 970, 974
(8th Cir. 2001). And although the statements attributed to the defendants were not
sworn confessions given to law enforcement, the cumulative affect of the evidence
presented at trial was that each statement was corroborated by other evidence. See
United States v. Crenshaw, 359 F.3d 977, 987-91 (8th Cir. 2004) (discussing the value
of witness testimony where there are inconsistencies or credibility issues).
Accordingly, the defendants’ ability to point to the government’s witnesses’
credibility problems does not establish that the evidence is so lacking in probative
force that a new trial is warranted. See United States v. Fazio, 487 F.3d 646, 656 (8th
Cir. 2007) (“There was evidence to support the verdict. It may or may not have been
the same verdict we would have rendered had we sat on the jury. However, what the
district court, or appellate court, thinks of a defendant’s guilt or innocence is of little
import if there is sufficient evidence to support the jury’s guilty verdict. The jury

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watched and heard each witness testify, viewed the documentary evidence, and came
to a conclusion about who and what to believe.”).

The defendants also argue that the district court erroneously disregarded the
credibility problems presented by the government’s witnesses because it applied the
stricter standard used for a motion for judgment of acquittal when analyzing the
motion for new trial. In its order on that motion, however, the district court properly
stated the applicable legal standards and noted that it was not required to view all the
evidence in the light most favorable to the verdict and that it could weigh the evidence
and judge the credibility of the witnesses. The district court noted that the government
had presented evidence that pointed to the defendants’ guilt. Specifically, the district
court noted that the evidence presented placed both defendants at the scene of the fire
and established that they had a motive to set the fire. The district court also
acknowledged that the government’s evidence was circumstantial and that some of the
government’s witnesses had credibility problems. Nevertheless, the district court
concluded that the defendants had had the opportunity to address these issues during
the trial and that they received a fair trial. See United States v. Watkins, 486 F.3d
458, 464-65 (8th Cir. 2007) (opinion vacated and subsequently reinstated in relevant
part) (declining to second-guess a district court’s credibility determination when
witness testimony is corroborated and defense counsel cross-examined government’s
witnesses and had opportunity to expose unreliability of witnesses or impeach
witnesses with prior convictions). Because we believe that the record contains
sufficient evidence to support the convictions and that no miscarriage of justice
occurred, we conclude that the district court did not abuse its discretion by denying
the motions for a new trial.

III. Government’s Closing Argument

The defendants assert that their convictions should be reversed because the
prosecutor’s conduct and statements during closing argument were improper and

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should have led to a mistrial. We review for an abuse of discretion the district court’s
decision to deny a motion for mistrial. United States v. Brandon, 521 F.3d 1019, 1026
(8th Cir. 2008).

As indicated earlier, the statements at issue occurred at the end of the
government’s rebuttal closing argument. In sum, the prosecutor stated that Davis and
Edwards had confessed to the crime, displayed “Exhibit K” on a large screen directly
comparing statements attributed to each defendant, and drew the jury’s attention to the
similarity of the statements. The defendants assert that this violated Bruton v. United
States, 391 U.S. 123 (1968), violated the district court’s motion in limine, violated the
district court’s local rules, and illustrated the district court’s error in not granting their
motions to sever the trial.

A. Prosecutorial Misconduct

Prosecutorial misconduct can result in the reversal of a conviction if (1) the
prosecutor’s conduct or remarks were improper, and (2) the conduct or remarks
prejudicially affected the defendant’s substantial rights by depriving the defendant of
a fair trial. United States v. Eagle, 515 F.3d 794, 804 (8th Cir. 2008). Closing
arguments must be limited to the evidence and the inferences that can reasonably be
drawn from the evidence. Id. at 805. District courts have broad discretion to control
closing arguments. United States v. Littrell, 439 F.3d 875, 881 (8th Cir. 2006). We
will reverse a conviction based upon improper statements in closing arguments only
if there is a clear abuse of discretion. Id. If the defendant does not object to an
allegedly improper statement, however, the alleged error is not properly preserved for
appellate review, with the result that we review only for plain error and reverse only
under exceptional circumstances. Id. at 881-82; see also United States v. Crawford,
523 F.3d 858, 861 n.3 (8th Cir. 2008) (applying plain error standard when the
defendant did not object to the statements he alleges constitute prosecutorial
misconduct); United States v. Mickelson, 378 F.3d 810, 819 (8th Cir. 2004) (applying

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plain error standard to the defendant’s challenge of statements admitted into evidence
because the defendant did not object to the statements when they were admitted). We
reverse for plain error only if “(1) the court committed an error; (2) the error is clear
under current law; and (3) the error affects [the defendant’s] substantial rights.”
Mickelson, 378 F.3d at 819 (alteration in original) (internal quotation omitted).
“However, even if there has been plain error affecting the defendant’s substantial
rights, whether we notice the error is a matter of discretion, and we reverse for plain
error only where the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id.

The defendants argue that the district court granted them a standing objection
that applied to the prosecutor’s closing argument. The standing objection, however,
applied only to the admission of out-of-court statements that were admissible against
one of the defendants but inadmissible against the other defendant. The proper
objection during the closing argument would have been for misuse of the evidence and
not to its admission. In the absence of any objection during the argument, the alleged
error was not properly preserved for appeal. Accordingly, our review is for plain error
only.

The defendants assert that the use of their out-of-court statements during the
prosecutor’s closing argument violated Bruton because it invited the jury to use
statements made by one defendant against the other. In Bruton, the Supreme Court
held that the admission of a non-testifying defendant’s statement implicating a
codefendant violates the codefendant’s constitutional right to confront the witnesses
against him even if there is a curative instruction otherwise. 391 U.S. 123, 135-36
(discussing the Sixth Amendment’s Confrontation Clause). There is no Bruton
violation, however, if the statement “only inculpates a codefendant inferentially-
through linkage to other evidence.” United States v. Coleman, 349 F.3d 1077, 1085
(8th Cir. 2003) (citing Richardson v. Marsh, 481 U.S. 200, 208 (1987)). Thus, a
Bruton violation can be avoided by redacting information from the statement that

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references the codefendant and providing a limiting instruction to the jury. Coleman,
349 F.3d at 1085; see also United States v. Edwards, 159 F.3d 1117, 1125-26 (8th Cir.
1998) (allowing proper names to be replaced with pronouns or nondescriptive nouns
to avoid Bruton violation).

In United States v. Jones, we explained that, even when the confession by a
defendant does not specifically name the codefendant, a Bruton violation occurs
“when the unnamed defendant is tied directly to the confession in the manner and
context in which the confession is presented.” 101 F.3d 1263, 1270 n.5 (8th Cir.
1996). Thus, in Jones, the statement of one defendant in which the defendant referred
to a group of people committing the crime did not violate Bruton because the
prosecutor carefully applied the statement only to the declarant. Id. at 1270 n.4. In
contrast, we held in United States v. Long, that a Bruton violation had occurred
because, during the testimony in which the statement was admitted into evidence, the
prosecutor invited speculation and “led the jury straight to the conclusion that
‘someone’ referred to [the declarant’s codefendant].” 900 F.2d 1270, 1280 (8th Cir.
1990) (affirming the conviction however, because the Bruton violation was harmless).

Here, the prosecutor compared a statement attributed to each of the defendants.
Neither of the statements, however, referred to the other defendant or any other person
directly. Thus, the admission of the statements was not an obvious error under
Richardson and its progeny. See Richardson, 481 U.S. at 211 (“[T]he 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.”).

In any event, we conclude that the prosecutor’s use of the demonstrative aid did
not affect the defendants’ substantial rights, nor did it deprive them of a fair trial. To
determine whether a defendant received a fair trial, we look at (1) the cumulative
effect of the misconduct, (2) the strength of the properly admitted evidence of the

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defendant’s guilt, and (3) the curative actions, if any, taken by the district court.
Eagle, 515 F.3d at 804-05. In conducting this analysis, we note that because there was
no contemporaneous objection to the prosecutor’s conduct, we will reverse only under
exceptional circumstances. Littrell, 439 F.3d at 881-82.

Before any evidence was presented, the district court informed the jury that the
opening statements and closing arguments are intended to help the jury understand the
evidence but are not themselves evidence. See Eagle, 515 F.3d at 806. The
statements attributed to the defendants in the government’s closing argument were
properly admitted, and the jury received several limiting instructions regarding the use
of out-of-court statements. The district court also repeated its limiting instruction
during the jury’s final instructions, which the jury heard immediately before closing
arguments, and it was included in the packet of instructions given to the jury. Finally,
we note that the defendants’ failure to object left the district court in a quandary, for
as it noted in its analysis of the motion for mistrial:

[w]hen I saw the statements side by side, it gave me some pause, but at
that point I don’t think it was my place to interject myself into the
closing argument and try to deal with the concern I saw it raise. Had
defense counsel at that point raised the concern, it would have given me
the ability to do something about it at that point and at least lessen
whatever effect there may have been . . . I guess my concern is that with
the quality of representation both defendants had in this case, that
problem was immediately visible and known by defense counsel, and it
was their choice not to raise it to give the Court an opportunity at that
point to deal with it. Now, I’m not being critical. I’m just saying . . . I
had some concern, but I did not think it was my place to raise it on my
own. . . . I’m just trying to say that that’s a tactical decision. I’m not
criticizing it. I’m just saying that it took away my ability to deal with it.

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 Accordingly, although we do not condone the manner in which the prosecutor
utilized the previously undisclosed demonstrative aid, we conclude that the district
court did not abuse its discretion in denying the defendants’ motions for mistrial.3

B. Motion to Sever

The defendants argue that the district court abused its discretion in denying their
motions to sever and that they suffered real prejudice as a result. Specifically, the
defendants argue that the prosecutor’s closing argument made it impossible for the
jury to compartmentalize the evidence that related to each defendant.

Two or more defendants may be charged in the same indictment if they
allegedly participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. Fed. R. Crim. P. 8(b). A district
court may sever the defendants’ trials, however, if joinder of the defendants appears
to prejudice a defendant or the government. Fed. R. Crim. P. 14. A defendant seeking
severance must show that “real prejudice” will result from a joint trial. United States
v. Mickelson, 378 F.3d 810, 817-18 (8th Cir. 2004). Merely showing that the
defendant would have a better chance for acquittal with a separate trial is not enough.
Id. To show real prejudice, the defendant must establish that “(a) his defense is
irreconcilable with that of his co-defendant or (b) the jury will be unable to
compartmentalize the evidence as it relates to the separate defendants.” Id. at 818.
Generally, the risk that a joint trial will prejudice one or more of the defendants “is
best cured by careful and thorough jury instructions.” Id.; see also Zafiro v. United
States, 506 U.S. 534, 537 (1993) (approving of joint trials because they promote
efficiency and avoid the injustice of inconsistent verdicts). We reverse a district

3
In light of this conclusion, we need not address the defendants’ contentions that
the demonstrative aid was not published to them before closing arguments, in
violation of Local Rule 83.6(j), and that the prosecutor inaccurately described the aid
as an exhibit even though it had not been admitted into evidence.

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court’s denial of a motion to sever only if the district court abused its discretion and
the defendant suffered real prejudice. Mickelson, 378 F.3d at 817.

Davis and Edwards were charged with participating in the same act of arson and
therefore were properly joined under Rule 8(b). In the pretrial motion and in the
motion for mistrial, the defendants’ main argument for severance was that some of the
evidence admissible against one of the defendants was damaging to both defendants.
This is not enough to require separate trials. See id. at 818 (“Severance is not required
merely because evidence that is admissible only against some defendants may be
damaging to others.”). Because we have already concluded that the government
presented sufficient evidence to uphold the convictions and that the defendants’
substantial rights were not affected by the prosecutor’s closing argument, we conclude
that the defendants have not established that they suffered real prejudice from the
denial of their motion to sever.

The judgment is affirmed.

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent.

This case presents a clear Bruton error which was preserved and was most
certainly not harmless. Indeed, the error here was so egregious and prejudicial it
amounted to plain error. I would therefore reverse the convictions.

After a joint trial, Marcus Davis and Stephen Edwards were convicted of one
count of malicious use of fire resulting in death in violation of 18 U.S.C. § 844(i).
They were each sentenced to 360 months’ imprisonment. Their convictions stem
from a fire that erupted on March 6, 2000. One person tragically died in the fire.

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Police determined the fire had been set intentionally. However, charges were not
brought against Davis and Edwards for another five years.

The Government’s case consisted almost entirely of circumstantial evidence
with the exception of two incriminating statements, one made by Davis, and the other
made by Edwards. Two days after the fire, Davis allegedly said to Joyce O’Neal, “I
didn’t mean for it – I didn’t mean for it to happen like this. I was only trying to scare
the old lady because every time our music – we would turn our music up, she would
always call the police on us.” This alleged statement to O’Neal was not made to law
enforcement personnel until 2006.

In late 2002 or early 2003, Edwards reportedly said to Betty Jo Thompson, “We
set the fire to get someone out.” Edwards also stated, “It wasn’t to hurt anybody, to
murder anybody. It wasn’t to kill anybody. It was to get someone to come out of the
house.” Because the majority of the Government’s evidence against Davis and
Edwards was circumstantial, these statements were key to its case.

Both Davis and Edwards filed pre-trial motions to exclude Edwards’s
statements to Betty Jo Thompson. The district court denied the motions, but stated in
response that it would give the jury the following limiting instruction:

You may consider the statement of defendant, whoever it is, Edwards or
Davis, only in the case against him and not against the other defendant.
You may not consider or discuss that statement in any way when you are
deciding if the Government has proved beyond a reasonable doubt this
case against the other defendant.

The parties and the court also agreed that instead of objecting every time a statement
was referenced during a witness’s testimony, defense counsel would need to object
once – the first time the statement was referenced with each witness. At that point,

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a standing objection would be established with respect to that witness. In addition to
the standing objection, the district court also obtained assurance from the prosecutor
that the Government would “sanitize” any admissions or out-of-court statements so
as to eliminate any improper and prejudicial reference to Davis or Edwards.

Notwithstanding the clear instruction from the district court, the Government
at the very end of its rebuttal argument displayed, as a demonstrative aid, Davis’s and
Edwards’s statements side-by-side on one Power Point slide.4 The prosecutor
remarked, “And, ladies and gentlemen, they even confessed to it.” The slide remained
on display before the jury until the end of the argument. The prosecutor closed his
rebuttal by stating, “And look how similar their statements are.”5

Neither Davis nor Edwards made any specific objection to this slide
presentation during the prosecutor’s rebuttal. After closing arguments, the court
issued its jury instructions which included the limiting instruction on the use of the
confessions. Immediately after the case had been submitted to the jury, Davis and
Edwards moved for a mistrial on the ground that the prosecutor’s use of the statements
during rebuttal violated their Sixth Amendment rights.

The district court denied the motion. However, the court noted, “When I saw
the statements side by side, it gave me some pause, but at that point I don’t think it
was my place to interject myself into the closing argument and try to deal with the
concern I saw it raise.” The district court explained that it could not issue a curative
instruction and rebuke the prosecutor because the defendants failed to make a
contemporaneous objection.

4
The slide was not admitted into evidence at trial.
5
A paper copy of the slide is attached as an appendix to this dissent.

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 The majority holds that the prosecutor’s use of the defendants’ statements in its
rebuttal did not violate Bruton and that regardless, the error was not preserved and did
not amount to plain error. I disagree.

I begin first with the Bruton violation. In Bruton v. United States, 391 U.S. 123
(1968), the Supreme Court held that the admission of a nontestifying codefendant’s
confession, which expressly implicated the defendant, presented a great risk that the
jury could not or would not follow the court’s limiting instructions and therefore
violated the defendant’s Sixth Amendment rights under the Confrontation Clause. Id.
at 137. The Court explained that “[n]ot only are [such incriminating statements]
devastating to the defendant but their credibility is inevitably suspect.” Id. at 136.
Thus, the Court held that the conduct of the prosecutor violated the defendant’s Sixth
Amendment right “to be confronted with the witnesses against him,” U.S. Const.
amend. VI. Bruton, 391 U.S. at 137.

In Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court revisited its
holding in Bruton and addressed whether a statement, redacted to omit any reference
to the defendant, violates Bruton when the defendant is linked to the confession by
properly admitted evidence. Id. at 202. Clarifying that Bruton’s holding is a narrow
one, Richardson explained that Bruton does not apply to statements that only become
incriminating when linked with evidence introduced later at trial. Id. at 208. Thus,
the Court held, “the Confrontation Clause is not violated by the admission of a
nontestifying codefendant’s confession with a proper limiting instruction when . . . the
confession is redacted to eliminate not only the defendant’s name, but any reference
to his or her existence.” Id. at 211.

While Richardson held that Bruton’s application does not extend to a statement
that in no way implicates or even references the defendant, the Supreme Court
explained in Gray v. Maryland, 523 U.S 185 (1998), that Bruton is not confined to a
statement that expressly names a defendant. Id. at 196. In Gray, the Supreme Court

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held that the admission of a nontestifying codefendant’s confession, which replaced
the defendant’s name with “blank,” violated the Sixth Amendment. Id. In so holding,
the Court explained that a statement is not outside Bruton’s scope if the jury must use
inference to connect the statement in the confession to the defendant. Id. at 195. The
Court explained that what implicates Bruton is “the kind of, not the simple fact of,
inference.” Id. at 196. And therefore, despite the fact that the statement in Gray did
not reference the defendant’s name or identity, the statement was protected under
Bruton because it led the jury straight to the conclusion that the blanks in the
codefendant’s statement referred to the defendant. Id. at 196, 197.

Thus, under Bruton and its progeny, the key inquiries when a Bruton question
is raised are: (1) whether the nontestifying codefendant’s statement implicates the
defendant; and (2) “whether [under the circumstances] a court’s instruction to apply
a confession only to the declarant is adequate to constrain the jury to do so,” United
States v. Jones, 101 F.3d 1263, 1270 (8th Cir. 1996). In determining whether a
statement implicates a defendant, we look to the manner and context in which the
prosecutor presented the statement. See id. at 1270 n.5.

In this case, both statements, as presented in the prosecutor’s rebuttal, clearly
implicated both Davis and Edwards by linking each defendant’s alleged admission to
the other codefendant. The prosecutor drew attention to the statements by
prominently displaying them side-by-side during the rebuttal. And with the
statements in full view, the prosecutor concluded by stating, “And Stephen Edwards
was right there helping him. ‘It wasn’t meant to kill anybody.’ And look how similar
their statements are.” By presenting the statements in this manner during rebuttal, the
prosecutor graphically connected the statements, the effect of which was that
Edwards’s statement implicated Davis and Davis’s statement implicated Edwards.

Next, the prosecutor’s use of the statements during rebuttal effectively nullified
the district court’s limiting instructions. We explained in Jones that limiting

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instructions are rendered ineffective when the statements, as used by the prosecutor,
will lead the jury to “easily” and “logically” apply the codefendant’s confession to the
defendant, notwithstanding the court’s limiting instruction. See Jones, 101 F.3d at
1270 (explaining that in determining whether the court’s limiting instruction is
ineffective, the inquiry is whether, “if left without instruction the jury might easily and
logically apply the confession to the defendant”). The prosecutor in this case
eliminated the curative effect of the court’s limiting instruction by suggesting that the
jury use Davis’s statement against Edwards and Edwards’s statement against Davis.
Indeed, the prosecutor instructed the jury to compare the two statements in evaluating
whether Davis and Edwards were guilty of the charges against them. The use of the
out-of-court confessions in such manner violated Davis’s and Edwards’s rights under
the Confrontation Clause.6

Of course, a Bruton violation alone is not enough to compel reversal as Bruton
violations are subject to harmless error review. United States v. Coleman, 349 F.3d
1077, 1085 (8th Cir. 2003). The test for determining whether a constitutional error
is harmless is “whether it appears beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.” Neder v. United States, 527 U.S. 1, 15
(1999) (internal quotations and citation omitted). In light of the circumstantial nature

6
The district court recognized that the prosecutor’s conduct during rebuttal
posed a serious risk that the jury would use the statements in violation of Davis’s and
Edwards’s constitutional rights. In its order denying Davis and Edwards a new trial,
the district court made the following remarks regarding the prosecutor’s use of the
statements during rebuttal:

[T]he Court finds that the prosecutor’s conduct was questionable.
Displaying [the statements side-by-side] and asking the jury to “look
how similar their statements are,” invited the jury to improperly consider
the statements of one co-defendant in determining the guilt of another.
The Court repeatedly instructed the jury that such comparisons were not
permissible and the prosecutor’s rebuttal argument violated those
instructions and the Court’s ruling on the motions in limine.

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of the case against Davis and Edwards, and that the prosecutor’s comments came as
the jury was about to begin deliberations, by the time the prosecutor concluded his
rebuttal it was too late for a limiting instruction to have any curative effect. The
damage had been done. Under these circumstances, the error was not harmless.

The majority has a fallback position, however. It concludes that even if there
was error, it was not preserved because defense counsel failed to object during the
prosecutor’s rebuttal. I disagree. Counsel did, in fact, preserve the error.

While it is true that defense counsel remained silent during the prosecutor’s
rebuttal, the defendants’ rights had been preserved earlier in the trial proceedings.
Both Davis and Edwards filed motions in limine prior to trial seeking to exclude
Edwards’s statements to Betty Jo Thompson.7 The motion in limine not only objected
to the use of any statements at trial but also to the use of any statements in
“arguments.”

Here the district court made a definitive ruling denying the motions in limine.
Under Federal Rule of Evidence 103(a) (“Rule 103(a)”), the court’s ruling made it
unnecessary for defense counsel to raise another objection during rebuttal to preserve
the error. Rule 103(a) provides in pertinent part: “Once the court makes a definitive
ruling on the record admitting or excluding evidence, either at or before trial, a party
need not renew an objection or offer of proof to preserve a claim of error for appeal.”

7
Edwards did not, however, move in limine to exclude the statement Davis
made to Joyce O’Neal. However, the issue of the Government’s use of Davis’s and
Edwards’s out-of-court confessions during trial and arguments was certainly before
the district court. Both Davis and Edwards raised this issue in their motions for
severance. Furthermore, after the district court denied severance, counsel for both
Davis and Edwards expressed concerns regarding the out-of-court statements.

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Fed. R. Evid. 103(a) (emphasis added). Thus, Davis and Edwards were not required
to renew the objection during the rebuttal in order to preserve the error for review.8

Relying on Rule 103, the First Circuit held, under somewhat similar
circumstances, that an error was preserved for appeal despite defense counsel’s failure
to object to the use of certain gambling metaphors in the prosecutor’s closing
arguments. United States v. Carpenter, 494 F.3d 13, 20-21 (1st Cir. 2007). In
Carpenter, the defendant, Carpenter, moved in limine and made several trial objections
to the introduction of certain testimony relating to the defendant’s investments and
losses. Id. at 18. The district court, on several occasions, ruled on the objections and
noted that for purposes of Rule 103 the objection was preserved for appeal. Id. at 19-
20.

The First Circuit held that the error was preserved under Rule 103(a) because
the court made a definitive ruling on the objection and that Rule 103(a) did not require
defense counsel to object during closing arguments to preserve the error for appeal.
Id. at 20-21. In so holding, the First Circuit looked to the accompanying commentary
to Rule 103 which states, “[w]hen the ruling is definitive, a renewed objection or offer
of proof at the time the evidence is to be offered is more a formalism than a
necessity.” Id. at 18-19 (quoting Advisory Committee notes to the 2000 Amendment
to Rule 103) (emphasis added).

Similarly, here the district court made a definitive ruling on the motions in
limine. Indeed, the district court noted that defense counsel had a standing objection
dispensing with the requirement that counsel object every time Davis’s or Edwards’s
out-of-court statements were improperly referenced. Therefore, the error was
preserved.

8
From a strategic standpoint, an objection during the prosecutor’s rebuttal may
have only compounded the problem by drawing further attention to the statements.
Indeed, securing an evidentiary ruling in advance of trial eliminates this risk.

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 The conduct of the prosecutor here produced a Bruton error, which seriously
affected the fairness, integrity, and public reputation of the judicial proceedings. And
so, even if counsel failed to preserve the error, it was plain and requires reversal of the
convictions. The majority states that the error was “not an obvious error under
Richardson and its progeny.”9 Slip Op. at 17. I fail to see how the record supports
that conclusion. Richardson and its progeny, as discussed in this dissent, prohibit the
use of each codefendant’s out-of-court confession in the manner in which they were
used in this trial. Not only was there a substantial risk that the jury would use Davis’s
and Edwards’s confessions against the other, but the prosecutor encouraged the jury
to do so. In this context, the district court’s limiting instruction became entirely
ineffective.

As in Bruton, we are presented here with a situation 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.”
Bruton, 391 U.S. at 135-36 (emphasis added).

For these reasons I would reverse the convictions. The error here was preserved
and was far from harmless, indeed it was plain. In a weak case, this improper blow
carried the day.

9
The implication of the majority’s statement is unclear. The “obviousness” of
the error is irrelevant. Either the prosecutor’s conduct did or did not violate Bruton.

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