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South Kansas City Blast Site
by J.J. Maloney
On Oct. 30, 1998 the 8th U.S. Circuit Court of Appeals denied the appeal of five defendants convicted of causing the deaths of six Kansas City firefighters in 1988. The defendants, Darlene Edwards, Frank Sheppard, Earl (Skip) Sheppard, Bryan Sheppard and Richard Brown, were sentenced to life imprisonment without possibility of parole.
For months the defendants, and their attorneys, had been hoping the 8th Circuit’s lengthy deliberations might lead to a new trial. The case was argued before the 8th Circuit on April 15, 1998. At time of oral argument, the three judge panel had sharply questioned Assistant U.S. Attorney Paul Becker, head of the Organized Crime Strike Force in Kansas City, who had prosecuted the case. This sharp questioning caused many to believe the 8th Circuit would overturn the convictions.
As it turns out, on the very day the decision was handed down, Assistant U.S. Attorney Paul Becker was in Washington receiving an award from U.S. Attorney General Janet Reno for winning convictions in the case. The U.S. Treasury Department had earlier given an award to retired ATF Special Agent Dave True for putting the case against the five defendants together. (Ironically, the Missouri Bar Association gave this author its 1997 "Excellence in Legal Journalism Award" for two lengthy articles that forcefully say the five defendants are innocent.)
The case involves events that occurred in the early morning hours of Nov. 29, 1988. Two security guards – Robert and Deborah Riggs (brother and sister) were working as security guards at a construction site in south Kansas City. The Riggses testified that they had gone to the nearby Quik Trip, looking for several persons they had seen walking near the construction site, when someone pulled into the Quik Trip, saying there was a fire down the road. The pickup truck of Deborah Riggs was on fire, as was a trailer across the highway containing 20,000 pounds of ANFO (ammonium nitrate and fuel oil). Two fire department pumpers, containing six firefighters arrived. First they put out the fire in the pickup truck, then went across the highway to fight the fire in the trailer. When the trailer exploded, all six firefighters were killed instantaneously. The first explosion set fire to a second trailer, also containing ANFO, which also exploded. For a complete discussion of the subsequent investigation, indictments and trial, see: Firefighters Case Part I and Part II.
The 8th Circuit decision seriously misstates the facts of the case repeatedly.
The decision states that the defendants were the immediate suspects of police, which is untrue. Immediately after the explosion the police investigated a large number of individuals because of tips pouring in from often anonymous callers.
The federal government, which conducted its own, separate investigation (headed by Dave True), focused on organized labor – and as late as 1994 True said organized labor was the focus of the federal investigation. The words "organized labor" are not to be found in the 8th Circuit opinion – although defense lawyers battled throughout the trial to be allowed to put DOL agent Gene Schram on the stand (Schram was head of Labor Racketeering in Kansas City).
Although it did not come out at trial, because the defendants did not testify (for reasons set forth later), on Dec. 8, 1988, it was defendant Darlene Edwards who told the police that, shortly after the first explosion, she saw a black pickup truck, resembling one owned by Richard Brown, driving past her house at a high rate of speed. That resulted in the police harassing Brown for years – until, years later, he made a statement to police pointing the finger of blame at Edwards, Frank and Skip Sheppard. (Throughout the trial the government portrayed the five defendants as tightly knit). Actually, Brown gave two statements: In the first one he named six individuals, in the second one he narrowed the field to three, which may be the reason the government did not offer his statements into evidence at the trial.
In late 1994, the ATF set Edwards up on a drug bust (using her stepson). During questioning, she denied any knowledge of the explosion, or who was involved, and repeatedly requested a polygraph test. At the conclusion of the interview she was arrested for the drug charge and told she would go to prison for five years. She was then informed she had a "window of opportunity," if she cooperated in the Firefighters case. She replied that she didn’t know anything, and again asked for a polygraph test. The ATF later showed Brown’s statement to Darlene Edwards, indicating that she could take the fall for the explosion unless she cooperated.
Several days later Edwards contacted ATF, saying she was willing to cooperate. She said Brown and Bryan Sheppard had come to her house late the night of Nov. 28, 1988 and said their car had run out of gas, asking her if she would drive them to Quik Trip to buy gas for their car. In her statement she said that she parked behind Quik Trip, smoking a joint, while they went to buy gas. Then, she said, they directed her to the construction site and wanted her to drive up a rugged hill (to the area where the trailers were parked) and that she refused to do so, because she was driving a new rental car. At that point, according to her statement, she overheard them talking about doing something criminal, and they said they were going to start a fire as a diversion. She said she then refused to have any part of what they were doing, and left, leaving them at the construction site.
It was these conflicting statements by Brown and Edwards that caused the five defendants to ultimately not testify in their own defense – also, since Brown would testify last, Edwards was unwilling to give him a chance to sandbag her.
The 8th Circuit, in citing a statement given by Darlene Edwards to ATF (a statement she later renounced) says that Edwards, in her statement, "agreed" to take Bryan Sheppard and Richard Brown to the construction site so they could set a fire. That is contrary to what her statement actually said:
"(Darlene Edwards): After I had come home from being over at Frank’s [Edward’s was living with defendant Frank Sheppard in 1988] brother’s brother-in-law and sister’s, okay, Frank and I had come home. He was drunk and wanting to argue as usual, right? We went to bed. I pacified him, he passed out. Someone [the government redacted the named of Brown and Bryan Sheppard] come up and said they’d run out of gas. Wanted to know, could I take them down to get some gas, right? We were not in his black car or as Ronnie says. It was a rental car that I had gotten, because my car had been stolen. Okay, my car was gone. It was a rental car, Dodge K-car, I think they called it because of the suspension was like a "K", okay?
"(ATF Agent Harry Lett): Uh huh.
"(Edwards): Okay, and I took them down to Quik Trip. I had, I usually kept a joint rolled beside the bed because at that time, that’s all I did was, you know, I’d just indulge in smoking pot once in a while. Just the worst of my vices. So, I took them down. They took a joint. I parked behind the building, behind the Quik Trip, because I was smoking a joint.
"(Edwards): And if…
"(Lett): That’s the Quik Trip at?
"(Edwards): 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 because I love the fuck out of me, and I left them there, period!"
How, then, does the 8th Circuit conclude that she "agreed" to take them to the site so they could set a fire? It’s also worth noting that, in her first interview, where she repeatedly requested a polygraph test, while denying any knowledge of the explosion, she made no similar request during this second interview – nor did the government ask her to take a polygraph test, even though she was changing her story 180 degrees in two days.
On the issue of actual innocence – and the effort by the defense to show that a security guard at the site (Deborah Riggs), set the fires to collect the insurance on her pickup truck – the court obfuscated that issue by saying the defendants were allowed to rigorously cross-examine the government’s witnesses, which is untrue – since the trial judge specifically forbade the defense from cross-examining Riggs about her admission to Prosecutor Becker (on the first day of trial) that, in the early 1970s, she had paid her roommate to steal her car so she could collect the insurance.
In fact, a major issue on appeal was the fact the trial judge refused to allow the defense to call a witness who claimed he drove past the site several times before the fires and saw a pickup truck with its hood up – which would have impeached Riggs’ testimony that her pickup truck (the only one known to be on the site that night) was functioning properly that day, and that no work had been done on her truck. The trial judge ruled that such testimony was too remote, and that the witness had not come forward sooner (he contacted the defense during trial) – yet, many of the government witnesses came forward years after the explosion (after a $50,000 reward for information in the case was posted in all of the prisons in Missouri and Kansas), and testified to conversations that allegedly occurred while everyone present was either drinking or doing drugs.
The 8th Circuit also ruled that a gas can had been found at the site after the explosion, and that there had been testimony there were gas cans around his and Edwards’ house (there was testimony from Becky Edwards, the teenaged daughter of Darlene Edwards, that she and Darlene often cut neighborhood lawns to earn money.) The 8th Circuit incorrectly stated: "…and a witness testified that Frank and Skip Sheppard had many gas cans as part of their lawn mowing business."
Kansas city detective Gary Wayne Parker testified, when asked if there was any evidence to connect the gas can to the explosion site: "I had no knowledge it was involved, no." It was later brought out that the gas can was never subjected to any testing of any kind (for fingerprints, gas residue, etc.)
The 8th Circuit also misstated the evidence when it said:
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.
Not one witness at the trial testified to seeing Darlene Edwards out and about in the Marlborough neighborhood before or after the explosions. Her next-door neighbors testified to seeing her come out of her house after the second explosion.
The 8th Circuit highlighted what will certainly be an issue down the road – in a post-conviction hearing, that the defense attorneys for Frank Sheppard, Richard Brown and Bryan Sheppard (although the 8th Circuit only mentions Brown and Bryan Sheppard) did not making a showing under Daubert v. Marion Dow to put before the jury results of polygraph tests all three had taken years earlier, and passed. The trial judge had clearly indicated he would not allow evidence of polygraph testing for any purpose, but the Daubert decision sets out the methods for offering such evidence so that it is a matter for appeal:
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).
One issue not before the 8th Circuit was that of the government bribing its witnesses to testify. After the conclusion of the Firefighter trial, the government split $56,000 among more than to 50 persons who provided information in the case. They did not disclose how many of those 50 persons testified at the trial, since that information is considered confidential at this point. Nor did they disclose how much of that $56,000 was paid to the dozens of convicts and convicted felons who testified.
Ironically, one of the witnesses who testified – Thomas Butner – is now a fugitive from the feds, because he perjured himself in another trial, where he was also receiving money from the feds (he used an alias in the second trial, to conceal the fact he had testified in the Firefighters case).
The 9th Circuit Court of appeals (after the Firefighter appeal was submitted), in a three judge panel, has made a ruling that has federal prosecutors across the nation up in arms: that ruling held that a federal statute prohibiting the giving of anything of value for court testimony, applied to federal prosecutors. That case, known as Singleton, is now awaiting a ruling by the 9th Circuit en banc – and if the panel decision is upheld, could become a major factor in future efforts to overturn the Firefighter convictions.
For a full discussion of the issues we invite you to read the 8th Circuit Opinion in this case, and then to read Firefighters Case Part 1 and Part 2.
The following is a more detailed analysis of the Court’s ruling with respect to the evidence against Darlene Edwards (to do all five defendants would result in prohibitive length): Therefore I have truncated the opinion to deal primarily with Darlene Edwards. You are urged, however, to read the full opinion, which is posted on this site:
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's(1) 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.
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 Court is incorrect. The most damaging evidence against Darlene Edwards came after the ATF posted rewards in every prison in Kansas and Missouri, offering a $50,000 reward for information in this case. The court cites three key witnesses against Darlene, and all three were convicts. This was contemporaneous with ATF agent True appearing in several courts, seeking high bonds and accusing Bryan Sheppard and Skip Sheppard of intimidating witnesses in the firefighters case. When challenged by U.S. Magistrate Maughmer to identify anyone who had been so threatened, True was unable to identify anyone – but the allegations were printed in the Star, and this put the public focus on the Sheppard family, and it was common knowledge that Darlene Edwards lived with Frank Sheppard at the time of the explosion.
There were more felons and convicts testifying at this trial than in any trial in the history of American jurisprudence.
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.
The court later cites a passage from her statement, which clearly states that, by the time she realized they were up to no good, they were already at the site, and she immediately left.
The court also fails to point out that Dornhoffer committed perjury during the course of the trial. Furthermore, ATF agent True appeared before the Missouri Board of Probation and Parole on Dornhoffer’s behalf in December, 1996, and the government had agreed to help her get transferred from state to federal prison. Dornhoffer said Darlene told her they stole communications equipment, office equipment, building materials and cement – all of which is contradicted by the testimony of company officials.
The defense tried to bring out that Dornhoffer, in her statement, had said Darlene told her Black Sabbath was present at the time of the fire. When the defense argued it was important to bring this out – since Black Sabbath was a rock band – the court ruled it would be unfair to let the defense bring that out, unless the government could also bring out the names of co-defendants who were named by Darlene, and that, under Bruton, the government could not bring out such evidence.
This in itself is evidence that Darlene was damaged by the Bruton situation, since she was prevented from impeaching one of only three witnesses cited by the court as testifying to alleged admissions by her. In its closing argument the government admitted the defense had caught Dornhoffer committing perjury.
Quiroz is another permitted to testify that Darlene said they had stolen machinery "and different tools" from the site prior to the explosion. She testified and Darlene told the that when the firefighters pulled into the site they must have talked on their walkie talkies and set off the explosion. She admitted she and Dornhoffer had the same lawyer and were trying to get a deal for their testimony.
The third witness against Darlene was Mynhier – who testified that Darlene said nothing to her about going to the site that night. She did give 404(b) evidence, however (see discussion below), saying that Darlene admitted stealing from the site before (dynamite which was hidden in the oven), and that there had been discussions at her kitchen table about stealing from construction sites. Mynhier was in daily contact with an FBI agent while in prison.
Obviously, the testimony of these three witnesses is far from convincing as to the guilt of Darlene – and therefore one has to conclude that the "overwhelming" evidence of guilt cited by the 8th Circuit is the spillover effect of the dozens of statements allegedly made by her co-defendants. In other words, even the 8th Circuit couldn’t compartmentalize the evidence, so how could a jury be expected to.?
As for the "neutral pronouns," it was the government that argued, in its closing, that: "These defendants didn’t just tell one person … They said, "We did it." They consistently said "We did it" over the years (Tr.XXI, p. 3915-16).
Therefore each witness who used the word "we" was speaking of the five defendants – and no one else.
This is far more aggravated than the Gray case, which involved the use of blank spaces and a cop testifying that, after taking that statement, he was able to arrest Gray.
(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).
The government gave, as its reason for admitting the statement, that Darlene said she was at home all night: "But it directly contradicts her assertion that she stayed home all night. I mean, that’s her defense." (Tr. 1812). Therefore, the 8th Circuit is rewriting history by saying the statement was admitted as the admission of a party opponent – it was offered by the government to rebut a statement that was not yet in evidence – the statement she had given two days earlier, in which she stated she was home all night. So, this is additional reason why the first statement had to be admissible, since it gave meaning to the government’s reason for seeking admission of the second statement.
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.
This is a misrepresentation of the evidence. Becky testified that she heard Richard Brown and Frank Sheppard having such a discussion. She further testified that, after the first explosion, she saw Darlene in her nightgown – at home.
The witness who testified about gas cans was Becky – who said she and Darlene (not Frank and Skip) used to cut lawns to earn money. The can found at the sight (a five gallon military type gas can) was never connected to this crime, and was never tested for fingerprints or even gas residue.
Finally, the 8th Circuit unquestioningly accepts the government’s assertion in its closing argument, that witnesses saw all five defendants "in the Marlborough neighborhood before and after the explosions. Not one witness ever testified to seeing Darlene anywhere but at her home the night of the explosion.
"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.
Where is the evidence that Darlene "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."
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.
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.
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?
"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.
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.
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 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).
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.
(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.)
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.
First of all, the Court is wrong in its analysis: the repetitious use of "we" and "they", where the defense cannot bring out exactly who "we" and "they" is, casts a pall of guilt over the defendants on trial. You had witnesses who testified that they were told not to name any names – other than the declarant of the statement. That is directly on point with Grey, where it was held that blank spaces drew attention directly to the defendant.
The jury gets the point – because of the "rules" the witness cannot name other names (why? Because, obviously, it would harm the other people on trial).
In ruling that Darlene was not affected by the court’s limitations on cross, the court misses the underlying point of the Bruton impact in this case: Had the defendants been allowed to bring out exactly what the witness had said in their statements, the jury would have realized that no two witnesses were testifying to the same set of facts.
At no time did any two of these many witnesses name the same set of defendants doing the same thing. Where the 8th Circuit rules the statements were "consistent", that is absolutely untrue. If you read the actual statements of the witnesses, you realize that they have a large number of non-defendants involved in the crime, and that the stories of what happened, and who did what, wildly conflicting. Because of the limitations on cross, the appellate record does not reflect what these witnesses said in their statements.
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.
This is remarkable, since no two witnesses testified to the same set of facts, and no witness testified to a statement that included all five of the defendants.
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.
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 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).
The Court ruled that the relevance of the 404(b) evidence is illustated by: ""[Darlene] said they stole machinery and different tools from the construction site before and she sold it in trade for crack cocaine."
However, the Court also, in saying there was "inconsistent" testimony on whether there was ever anything stolen from the site, the fact that management did not keep track of used batteries. In this statement, however, Darlene is alleged to have said "they stole machinery and different tools from the construction site before" – and the testimony of the company executives would be dispositive on whether this statement could possibly be true.
If the statement could not possibly be true, then how does it become relevant for purposes of proving motive (to buy crack cocaine).
Also, the admission of testimony that the defendants had stolen from the site before becomes not only objectionable on 404(b) grounds, but as proving a predisposition by defendants to steal from this construction site. This directly contradicts: U.S. v. Forcelle, 86 F.3d 838 (8th Cir. 1996), wherein it was held that evidence a defendant had stolen platinum from a company could not be introduced to prove he created invoices to defraud the same company, because the crimes are dissimilar.
In this case, there is voluminous testimony that the defendants had burgled this construction site repeatedly – and successfully (stealing dynamite, machinery, tools, copper, etc.)—and now they are charged with arson, which is certainly dissimilar from burglary. If you are going to believe the government’s evidence – then there is a logical inconsistency in this case: if they are professional thieves, who have been ripping this site off successfully for some time, why do they now set fires on both sides of the highway, when they never did that before?
The overwhelming thrust of the 404(b) evidence was to show a predisposition by the defendants to steal to buy drugs – which is contrary to the 8th Circuit ruling in U.S. v. Roark (1991), where they held: "Evidence of uncharged misconduct to show criminal propensity is inadmissible not because it is logically irrelevant, but because it is inherently and unfairly prejudicial. It deflects the jury’s attention from the immediate charges and causes it to prejudge a person with a disreputable past, thereby denying that person a fair opportunity to defend against the offense that is charged."
At the time of the explosion Darlene had no criminal record whatever – and now they allow inconsistent motive testimony to prove that, at the time of the explosion, she was a common thief and drug addict – all in connection with long-ago matters with which she was never charged.
Which is why the testimony by prison inmates created a false impression with the jury. They would naturally assume that Darlene – now in prison – was at the time of the explosion a criminal, which is not supported by any verifiable source. In fact, in her statement, she says that, at the time of the explosion, the only thing she did was smoke some marijuana.
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).
The underlying issue, not addressed in the opinion, was the extreme prejudice of admitting "admissions" by the defendants to a crime of which there is no evidence, other than speculation by government witnesses. The government failed to introduce any evidence whatever that Darlene’s car was actually set on fire – and they also failed to show that they made any effort to determine if there were police reports, or insurance reports.
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).
The issue raised, which is not addressed in the opinion, is whether the rulings by Stevens prevented Darlene and the others from asserting the affirmative defense that the arson was committed by Deborah Riggs. The ruling limits the issue to: "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."
There is a legal distinction between the limitation of cross and impeachment, and the right to assert the defense that someone other than the defendants committed the crime. It is inconsistent to uphold Stevens ruling, that the man driving by the scene who saw Riggs truck being worked on, too remote to be reliable, and yet to admit dozens of statements by people as to conversations they overheard many years ago, while drinking and doing drugs.
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).
At one point the court rules that they don’t believe the government had to prove the fire caused the explosion, and here they rule that the photographs were admissible to prove the defendants caused the victims deaths. This is clearly inconsistent, so no one has ever alleged that the arson, per se, killed the firefighters.
Secondly, the deaths of the firefighters was not an element of proof of the underlying crime of arson – the deaths could only be relevant as a sentencing issue: i.e., first you prove that the defendants committed the arson. If they did commit the arson, then the next issue is did the arson cause the deaths of the firefighters, and did the defendants "intend" to cause the deaths of the firefighters.
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.
The 8th Circuit oversimplifies this issue: The statements by defendants concerned not only batteries, but wildly inconsistent statements that they had stolen dynamite, acetylene torches, a transit, tools, copper wire, etc. The testimony was that, although the company did not keep track of used batteries, they also did not use any batteries that resembled the one introduced into evidence by the government. This over-simplification by the 8th Circuit also concerns its ruling that the statements by defendants were consistent.
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).
The Court somewhat misstates this recusal motion: It was a joint motion by all defendants – concerning Stevens mistrust of defense investigators, and not allowing Susan Hunt to use that investigator’s tape recording to impeach a government witness, but then Stevens did allow the government to use that same tape recording at a later time. This may not be a good fight, but it does point out that the 8th Circuit has not fully done its research. It also points out the inconsistency of Stevens’ rulings – consistently favoring the government.
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.
The evidence on whether the firefighters were warned was not contradictory. The only direct evidence at trial was the testimony of Deborah Riggs, who said she repeatedly warned the firefighters that the trailers contained ANFO. She said she warned the firefighters on both pumpers. Additionally, in the tape-recorded call to the fire department, there is the clear statement by Deborah Riggs: "The explosives are on fire." Since Robert and Deborah Riggs were the only persons at the scene, other than the six dead firefighters – this testimony has to be conclusive on the issue of whether the firefighters were told that the trailer contained explosives.
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 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).
This ruling opens the door to an issue not raised on appeal – but raised by the 8th Circuit ruling in the case: i.e., whether the determination that the "…defendant did not cause the death intentionally or knowingly…" is a factual issue for the jury and not a legal ruling that the trial judge can make. In other words, should the jury, as part of its verdict, decide whether the defendants intentionally caused the deaths of the firefighters?
The 8th Circuit cites the 2nd District (U.S. v. Tocco) for support that, the trial judge having been "…aware of its discretion to depart downward" renders such refusal not reviewable on appeal – however, the factual determination of intent to cause death must be reviewable. I’m not aware that Stevens ever stated any reasons for believing the defendants intended to kill the firefighters -- particularly, in a case such as this, where no one has ever alleged that the defendants intended to kill the firefighters (and where it is national firefighter policy to not fight ANFO fires). Nor was there ever any testimony that the defendants knew ANFO was in the trailers (or that they even knew what ANFO was at the time).