## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2935

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Darlene M. Edwards, * * Defendant - Appellant. *

___________ Appeals from the United States District Court for the No. 97-2943 Western District of Missouri.

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Richard W. Brown, * * Defendant - Appellant. *-2- ___________ No. 97-3019

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Earl D. Sheppard, also known as * Skip Sheppard, * * Defendant - Appellant. *

___________ No. 97-3022

___________ United States of America, * * Plaintiff - Appellee, * * v. * * Bryan E. Sheppard, * * Defendant - Appellant. *The HONORABLE ROBERT W. PRATT, United St ates District Judge for the * Southern District of Iowa, sitting by designation. -3- ___________ No. 97-3028

___________ United States of America, * * Plaintiff - Appellee, * * v. * * George Frank Sheppard, also known * as Frank Sheppard, * * Defendant - Appellant. *

___________ Submitted: April 15, 1998 Filed: October 30, 1998

___________ Before LOKEN and LAY, Circuit Judges, and PRATT, District Judge. *

___________ LOKEN, Circuit Judge. Early in the morning on

November 29, 1988, two Kansas City Fire Department pumpers arrived to fight two fires at a highway construction site in southeast Kansas City. The first pumper extinguished a burningpickup truck on the west side of the site and joine d the second pumper on the east side, where an aluminum storage traile r conta ining 25,000 pounds of explosives was on fire. The trailer exploded, instantl y killing six firefighters and igniting a second trailer filled with 30,000 pounds ofThe HONORABLE JOSEPH E. STEVENS, JR., United States District Judge 1 for the Western District of Missouri, presided over the t rial after the HONORABLE D. BR OOK BARTLETT, United States District Judge for the Western District o f Missouri, withdrew from the case because of illness. -4- explosi ves, which also exploded. Over seven years later, Darlene Edwards, Richar d Brown, Earl (Skip) Sheppard, Bryan Sheppard, and Frank Sheppard were indicted and convictedof the capital offense of aiding and abetting arson that caused the deaths of the firefighters. They appeal their convictions and life sentences. The primary issue is wheth er their Confrontation Clause rights as defined in Bruton v. United States , 39 1 U.S. 123 (1968), and its progeny were violated by the government’s reliance o n testimony by numerous witnesses relating each defendant’s out-of-court admissions of complicity, and by the district court’s refusal to grant eit her their motions for severance 1

or mistrial. The court instead allowed government witnesses to replace references i n the admissions to codefendants with neutral pronouns and then instructed the jury t o consider each admission only against the declarant. We affirm.
I. Sufficiency of the Evidence

.
The h ighway construction site was patrolled by two security guards. At 3:1 5 a.m., one guard thought she saw two people walking down the highway. The guards looked for trespassers, leaving one of their vehicles, a pickup truck, parked on the west side. They drove to a nearby convenience store, the Quik Trip, and learned the store manager had not seen anyone. As the guards were leaving the store, a car pulled up and the driver yelled there was a fire at the construction site. The guards returned an d reported their pickup truck was on fire and a second fire could be seen on the east side. At 4:08 a.m., the first trailer exploded, killing the six firefighters. Investiga tors concluded the pickup truck fire started when gasoline was poured into the driver’s side of the cab and ignited, and the trailer fire began in the tire area and be came so hot that the walls of the trailer ignited and caused the ANFO explosives toEdwards argues the district court committed plain error by admittin g a statement 2 that was not against her penal interest. We disagree. The statement was properl y admitted as the admis sion 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). -5- explode. T he investigation into who caused the fires was frustrated by a lack o f witnesses and surviving physical evidence. After years of dead ends, the explosion s were reenacted on a national televisio n program, Unsolved Mysteries , accompanied by
a well-publicized $50,000 reward, extensive local publicity, and a phone number fo r reportin g tips. Defendants lived in Marlborough, a neighborhood adjacent to th e constructi on site. Frank and Skip Sheppard are brothers, Bryan Sheppard is thei r nephe w, Richard Brown is Bryan Sheppard’s best friend, and Darlene Edwards wa s liv ing with Frank Sheppard at the time of the explosion. Many callers reported tha t defendants had repeatedly boasted of starting the fires. These indictments followed.

The government’s evidence at trial included Darlene Edwards’s 1995 tape

recorded statement. Edw ards told investigators that sometime between 1:30 and 2:30 2 a.m. Bryan Sheppard came to her house and asked if she woul d take Bryan and Richard Brown to get gas because their car had run out. Leaving Frank Sheppard asleep , Edwards dr ove 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 theyplanned 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 thre e inmates who testified that Edwards told the m, while she was incarcerated with them on ot her charges, that she and others had planned to steal tools and equipment from th e 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.-6-

Fifteen witnesses testified to admissions by Richard Brown, for ex ample, that “he went down there to steal and on the way down there they were out of gas and had to get some gas ,” that he got mad trying to get into the trailer and lit a fire with gas, and that they set a pickup truck and then a trailer on fire. Seven witnesses testifi ed to admissions by Skip Sheppard, for example, that he and others had been at the site to steal, tha t “they were stealing tool s from the construction site,” that they “set fire to cover up the st uff they had taken,” and that the “gas came from the Quik Trip station on 7 1 Highway.” Thirteen witnesses testified to admissi ons by Bryan Sheppard, for example, that “they went to steal batteries and the y set the fire to cover their tracks and they saw two security guards and they ran,” and that “he set a fi re as a diversion to go steal some explos ives.” One witness overheard Bryan Sheppard say to Frank, “I’m not like you and the other g uys. I can’t live with myself because of the death of them firemen, and it’s eating me up.” Twelve witnesses testified to admissions by Frank Sheppard, fo r example, that “the fire was set as a diversion and that the y didn’t know explosives were in the dump truck,” that “someone had drove him and someone else to g et some gas that they had used t o start the fire,” and that “they were down there trying to get into th e trucks and they weren’t

able to get anything and decided to pour gasoline on them and get them on fire.”
Defendants argue

the evidence was insufficient because the government did not introduce substantial independent evidence cor roborating their out-of-court admissions. It is well-settled that “a conviction must rest upon firmer ground than th e uncorroborated

admission or confession of the accused.” Wong Sun v. United States , 371 U.S. 471, 488-89 (1963). Ho wever, “[w]here the crime involves physical damage to person o r property, the prosecution must [only] show that the injury for which th e accused confesses responsibility did in f act occur, and that some person was criminally culpable. . . . There need in such a case be no l ink, outside the confession, between the injury an d the accused who admits having inflicted it.” Id. at 489-90 n.15 (citation s omi tted); see also United States v. Jacobs , 97 F.3d 275, 283 (8th Cir. 1996); Unite d States v. Opdahl , 610 F.2d 490 (8th Cir. 1979). Here, there was physical evidence thatAlthough the issue was not briefed, we doubt that causing the explosion wa s 3 even an element of the government’s case. See United State s v. Ryan , 9 F.3d 660, 668 (8th Cir. 1993), aff’d , 41 F.3d 361 (8th Cir. 1994) (en banc). -7- arson ca used the pickup truck fire and circumstantial evidence that arson caused th e trai ler fire. Therefore, independent corroboration of the admissions was not required.

Moreo ver, we reject defendants’ premise that the government’s case lacke d 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 th e explosion. Investigators found a gas can on the site that did not belong to th e 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 th e def endants in various groups in the Marlborough neighborhood before and after th e explosions. One saw Richard Brown’s car driving at high speed a short distance from the constr uction site three to five minutes after the first trailer exploded. Another saw Franka nd Skip Sheppard and two others pull up to their mother’s house near th e construction site fiv e to ten minutes after the explosion. Another saw Bryan Sheppard and Richard Brown around 7:30 a.m., after the explosion; Bryan smelled of g asoline and smoke and had numerous scratches and abrasions. Taken as a whole, the evidenc e tends to establish the trustworthiness of defendants’ many admissions.

Defendants further argue the government failed to prove that fire can caus e ANFO to explode because its opinion evidence to this effect did not meet the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). Daubert was 3 not argued to the district court, and the contention is without merit. Expert testimony would assist the jury on this issue, see Fed. R . Evid. 702, and the government’s experts
were well qualified. While admitting that ANFO ordinarily burns without exploding,
one testified, “once ANFO gets superheated and . . . it’s in a confined space, such as the trailers, they’ll high order, and it’s my opinion that’s how this explosion occurred.”-8-

Th e blast cone from the explosion was consistent with this hypothesis, and no mor e plausible explanat

ion was put forth. The evidence was sufficient for a reasonable jury to find that defendants set the fire that caused the fatal explosions.
Finally, defendants a

rgue that inconsistencies between some of their admissions and ot her evidence make the admissions unreliable, and also that the evidence onl y established mere presence or m ere association. We conclude these were issues for the jury. “To con vict under the aiding and abetting statute, 18 U.S.C § 2, the government need on ly 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 t o make the ac tivity succeed.” United States v. Clark , 980 F.2d 1143, 1146 (8th Cir

. 1992). Vi ewing the trial record in the light most favorable to the government, as w e must, we conclu de the evidence was more than sufficient to convict each defendant of aiding and abetting arson in violation of 18 U.S.C. §§ 844(i) and 2.

II. Confrontation Clause Issues

. Prior to trial, the district court denied defendants’ motions to sever the joint trial based on their contention that introduction of their numerous out-of-court admission s would vio late the Sixth Amendment’s Confrontation Clause as construed in Bruton

. Instead, the court ordered Darlene Edwards’s sta tement redacted to replace inculpatory references to her codefendants with neutral pronouns such a s “we,” “they,” “someone,” and “others .” The court also approved the government’s plan to instruct its witnessesnot to mention the names of codefendants when testifying to each defendant’s out-ofcourt admissions. During the trial, the court repeatedly instructed the jury to consider
ea ch admission only against the declarant. On appeal, defendants argue thei r 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.-9-

The prin ciples 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. Theref ore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessin g defendant takes the stand.
Ord inarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness “against” a defendant if the jury i s inst ructed to consider that testimony only against a codefendant. Thi s accords with the almost invariable assumption of the lawthat jurors follow their instructions. . . . In Bruton, however, we recognized a narro w exceptio n to this principle: We held that a defendant is deprived of hi s Sixth Amendment right of confrontation when the facially incriminatin g confession of a nonte stifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against th e codefendant.

In Bruton , a nontestifying codefendant’s confession to a postal inspector specificall y named pet itioner Bruton. The Court held that a jury instruction to consider th e 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 incriminatin g extrajud icial statements of a codefendant, who stands accused side-by-side with th e defendant, are deli berately 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 b e admissible against the declarant in a jo int trial if it was redacted to eliminate references to codefendants. See 391 U.S. at 133-34 & n.10.-10-

In Richardson , the codefendant’s written confession to police was redacted t o eliminate all referenc es 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 th e admission of a nontestifying codefendant’s confessio n 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 de clarant’s codefendants. The Supreme Court recently considered a variation of thi s problem in G ray v. Maryland , 118 S. Ct. 1151 (1998). The codefendant’s writte n confessi on to police was redacted by replacing specific references to petitioner Gra y with a blank space or the word “deleted” or “deletion.” A police officer read th e 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 issu e here involve statements that, despite redaction, obviously refer directly to someone , often obviously the defendant, and which invol ve inferences that a jury ordinarily could make immed iately, 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 i n original). The Court also emphasized the practical aspects of the redaction process:

Addition al redaction of a confession that uses a blank space, the wor d “de lete,” or a symbol, however, normally is possible. Consider as a n 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?Defe ndants’ contention on appeal is that the district court erred in denyin g 4 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 questio n 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. -11- “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 “t hey” set the fire, violated Bruton
as con strued in Gray

. Neither Richardson nor Gray discussed the admissibility o f 4 confe ssions in which codefendants’ names are replaced with a pronoun or similarl y
ne utral word, as in this case. This court and other circuit courts have consistentl y upheld such evidence so long as the redacted confession or admission does not facially incriminat e or lead the jury directly to a nontestifying declarant’s codefendant. Se e United Sta tes v. Jones , 101 F.3d 1263, 1270 & n.5 (8th Cir. 1996) (use of “we” an d “the y”); United States v. Williams , 936 F.2d 698, 700-01 (2d Cir. 1991) (“anothe r 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 distri ctcourt’s decision to admit nontestifying defendant admissions, redacted as t o codefendan ts by the use of pronouns and other neutral words, and accompanied b y appropriate limiting instructions, was consistent wit h this court’s decisions in Jones and Garciaand the Supreme Court’s recent decision in Gray

.This is illustrated by the key admissions in the videotaped statement of Darlene 5 Edwards, the only transcribed sta tement 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 at85th and 71 Highway. Yeah, they went around. They got some gas. They g ot 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 som ething. We’re going, we’re gonna take care of something. I said , wel l, look, I’m not staying here and playing if you are playing wit h gasoline. I’m not getting my funky ass blown up . . . and I left them there, period! An d then after I had gotten home and gotten in bed. . . . i s pr obably what must have woke Frank up, you know, when I’d gotte n undressed and got back in bed.
As in Jo nes , the use of “they” and “someone” did not violate Brutonbecause “th e manner of pr

esenting the confession and the context [did] not lead the jury directly to the [co]defendant[s].” 101 F.3d at 1271 n.5. -12- Unlike use of the word “deleted,” which directs the jury’s a ttention to an obvious redaction, referring to joint activity by use of the pronouns “we” and “they,” or by use of in definite words such as “someone,” does not draw attention to the redaction an d thus, in most situations, will not be incriminating unless linked to a c odefendant by other trial evidence. See Jones , 101 F .3d at 1270. Here, for example, the evidence included references to a larg e cast of characters from the Marlborough neighborhood who were connect ed in various ways to the defendants. Some of the admissions inculpate d nondef endants, thereby weakening any inference that words such as “they” an d “someone ” referred to the declarant’s codefendants. With improper inferences thu s 5 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-13-

not a situation, like the Court faced in Gray , in which additional redaction is normally possible. When an admis sion 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 ad ditional redaction favored -- “Me and a few other guys” -- has precisely the same effect as the redactions used in thi s
case
. Because joint trials “play a vital role in the criminal justice system,” it i s 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 issu es was not infected with legal error, we must consider whether the court i n implementing that approach abused its discretion in a way that requires a new joint trial or separate trials. First, defendan ts argue that the government’s opening statement and closing argument requ ire 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 codefenda nts’ cases. See Richardson , 481 U.S. at 211; compare Jones , 101 F.3d a t 1270 n.4, wi th United States v. Bennett , 848 F.2d 1134, 1142 (11th Cir. 1988). W e disagree. The prosecutor’s opening accurately emphasized that each defendant ha d made out -of-court admissions -- “Each of these defendants told multiple persons o n multiple occasions that they did it.” In closing, the prosecutor sum marized 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
e r red in prohibiting cross-examination to establish that an out-of-court admission was exculpatoryas to one or more codefendants. For example, one witness testi fied Richard Brown said “him and a group of people was there at the explos ion.” The phrase “group of people” was a redactio n to avoid incriminating Bryan Sheppard and Skip Sheppard. The court ruled that counsel for Frank Sheppard could not ask theDarlene Edwards, who as declarant may invoke the rule of completeness, argues 6 the district court violated the rule by excluding a prior statement she gave police i n whichshe denied any involvement in or knowledge of the arson. We disagree. Th e rule of completeness is limited to writings and only encompasses additional portion s of t he same statement. Moreover, the rule does not empower a court “to admi t unrelated he arsay in the interest of fairness and completeness when that hearsay does not come within a defined hear say exception.” United States v. Woolbright , 831 F.2d 1390, 1395 (8th Cir. 1987). -14- witness if Brown had mentioned him. This ruling was correct for two reasons. First, the rule of completene ss 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, e ffectively distorts the meaning of the statement
or exc ludes 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 (byomission) was exculpatory, and exculpatory out-of-court declarations are not admissible hearsay, even if they include a statement aga inst 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 als o 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 Confr ontation 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 pe rmitting cross-exam seeking to differentiate among the declarant’s codefendants. Defendants were allowed to elicit that nondefendants were named in an admission t o support the defense theory that others were responsible for the fire, and to clarify th e number of people referred to by a plural pronoun, to negate any inferenceOne witness testified that Darlene Edwards said “at one time Frank had made 7 plans” t o steal from the construction site, and that Edwards “would tell us about th e gas, how she we nt to get the gas and different things that she did with the othe r defendants .” Another witness testified when asked why he had not reported certai n 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 S heppard 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 S heppard why he had not called the police, he said, “I can’t turn in my family , my friends .” (Emphasis added.) -15- itmight refer to all defendants. Some defendants received the benefit of directl y
excu lpatory statements, such as Darlene Edwards’s statement that she left Fran k Sheppard at home asleep when she took others to get ga soline, and they were permitted to argue the significance of omissions in the out-of-court de clarations. We conclude the dis trict court did not abuse its discretion in the balance it struck between th e nontestifying declarants’ right to completeness and the nonconfessing defendants ’ Confrontation Clause rights.
Defendants next argue the district court erred in denying their moti ons for mistrial on the few occasions when lay witnesses forgot their Bruton instruct ions and blurted out a codefendant’s name in stead of replacing it with a neutral pronoun. The government 7 concedes these were mistakes. The district court immediately instructed the jury t o disre gardthe blurted testimony, and it twice ordered the testimony stricken from th e record. We have reviewed these instances, individually and c umulatively, and conclude the district court did not abuse its discretion in denying a mistrial.
Finally, it is well-settled that Bruton errors a re 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 Edward s, Richard Brown, and Bryan Sheppard were virtually unaffected by Brutonissues. None of the blurted redaction failures-16-

named Edwards or Brown, a nd only references to “my family, my friends” and “other defenda nts” touched on them at all. No defendant objected to the “my family, m y 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 b lurted reference to Bryan Sheppard only said he was “in on it,” a relativel y innocuous error in light of his numerous admissions of involvement. None of thes e defenda nts was affected by the district court’s limitations on cross-exam, whereas the evidenc e against these defendants was overwhelming. We conclude any Brutonerror was clearly harmless to these three defendants.

Al thoughFrank and Skip Sheppard were more directly affected by the Bruto n issues, we conclude any error was harmless to them as well. Two redaction failure s arguab ly affected Frank, but the district court’s prompt curative actions reduced an y 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 contr ast to the properly ad mitted evidence. Twelve witnesses testified to admissions by Frank Sheppard, and
seven witnes ses testified to admissions by Skip. As to each, the admissions wer e specific, detailed, and consistent.

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

III. Statute of Limitations and Pre-indictment Delay Issues

.
Th e federal statute of limitations for non-capital crimes is five years. See 1 8 U.S.C. § 3282. The arson occurred in 1988, more than seven y ears prior to defendants’ indictments. There is no limitations period for a capital offense, defined as “any offense punish able by death.” 18 U.S.C. § 3281. The arson statute provides that whoeve r commits arson resulting in death “shall also be subject to . . . the death penalty . . . as provided in section 34 of this title.” 18 U.S.C. § 844(i). Defendants argue their-17-

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

Defendants also argue the district court erred in denying their motion to dismiss the i ndictment because the nine-year pre-indictment delay violated their right to du e proce ss. Our cases hold that, to prevail on this claim, defendants have the burden o f proving the delay was u nreasonable and actually, substantially prejudiced the defense. See Un ited States v. McDougal , 133 F.3d 1110, 1113 (8th Cir. 1998); Bennett v

. Lockhart , 39 F.3d 848, 8 51 (8th Cir. 1994). Relying on Doggett v. United States , 505 U.S. 647 (1992), defendants argue the government should have the burden to prove the absence of prejudice. This argument i s without merit. Doggett involved a challenge to post-i ndictment

delay under the Speedy Trial Clause of the Sixth Amendment. Tha t Clause “is wholly irrelevant” to a Due Process Clause challenge to a pre-indictmen t delay. Uni ted States v. Lovasco , 431 U.S. 783, 788 (1977); accord United States v

. Bischel , 61 F .3d 1429, 1436 (9th Cir. 1995); United States v. Byrd , 31 F.3d 1329 , 1339-40 (5th Cir. 1994).
IV. Evidentiary Issues

.
A. Bad Acts Evidence . Defendants argue the district court vio lated Federal Rule of Evidenc e 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-18-

government’s cl aim 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 pa rties or the circumstances surrounding a particular event. See United States v. Moore , 1998 WL 337961 *5 (8th Cir. 1998). The dis trict court did not abuse its discret

ion in admitting this kind of background evidence. A jury “cannot be expected to make its decision in a void -- without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.” United States v. Moore , 735 F.2d 289, 292 (8th Cir. 1984).

Darlene Edwards and F

rank Sheppard argue the district court erred in admitting testimony that they admitted burning her car six weeks before the arson to collec t insurance proceeds. The government offered this evidence to prove motive -- that these de fendants needed money to buy drugs. The district court did not abuse its broa d dis cretion in concluding the prejudicial effect of this evidence did not outweigh it s pr obative value. See United States v. Crouch , 46 F.3d 871, 875 (8th Cir. 1995 ) (standard of review).

B. Limits on Cross-Examination . Darlene Edwards argues the district cour t 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 fromthe guard’s insurance fraud. Bryan Sheppard argues the district court erred i n restricting cross-e xam 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 u ntrue. The district court allowed defense counsel to extensively cross-examine the gov ernment’s witnesses. The rulings in question were not an abuse of t he court’s substantial discretion regarding issues of relevance, remoteness in time, and collateral impeachment. See Unit ed States v. Caldwell , 88 F.3d 522, 524 (8th Cir. 1996) (standard of review).-19-

C. Ex cluded Polygraph Examinations . Bryan Sheppard and Richard Brow n 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 th e exam results into evidence and obtaining a ruling on their admissibility. If the district court did bar the admission of polygraph results, that ruling cannot be plain error. See United States v. Scheffer , 118 S. Ct. 1261 (1998).

D. Admi ssion of Victim Photographs . The district court excluded a number of photographs of the deceased firefighters but admitted four of the less gruesom e photographs. Defendants argue this was er ror 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 ha d advised counsel that it considered causing the firefighters’ deaths to be a n element of this crime under 18 U.S.C. § 844(i). In objecting to the photographs , defe nse 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 n ot prove defendants caused the victims’ death. Therefore, the photos were clearly relevant when admitted. Th e
co urt did not abuse its discretion in concluding their probative value was no t substantially outweighed

by the risk of unfair prejudice. See Fed. R. Evid. 403; Walle v. Sigler , 456 F.2d 1153, 1154-55 (8th Cir. 1972).

E. Cros s-Exam on Failure To Call a Witness . Richard Brown lived with hi s gra ndmother. His defense was that he was home asleep at the time of the explosions. His witn esses included a neighbor who testified to seeing him after the secon d explosio n, dressed only in pants, with an elderly woman. Brown also called his uncle to rebut testimony that Brown’s truck was seen speeding down the road moments after the first explosion. On cross-exam, the uncle acknowledged that Brown’s grandmother had been called to testify and had come to the courthouse. The grandmother neve r testified, and during closing argument the government drew attention to her by saying, “Why do you need grandma to alibi for you. Aren’t you a big boy now?” Brown-20-

argues this was improper cross-exam and c losing argument warranting a new trial. We disagree. “The prosecu tor is free to comment on the failure of the defendant to call an available alibi witness.” United States v. Schultz , 698 F.2d 365, 367 (8th Cir. 1983).
F. False Testimony Issues . B ryan Sheppard argues the government violated his ri ght to due process by deliberately or negligently presenting false testimony. A government witness testified that B ryan made admissions at a home in the fall of 1989,
a time when he was in prison. The district court denied Bryan’s motion to strike this testimony as impossible but allowed defense couns el to effectively impeach the witness
as to the date. Later in the trial, the error in the date was confirmed by the admission of jail records. The government argued in closing that the witness was mistaken as to the da te but not the substance of the testimony. This episode falls well short o f esta blishing that the government either knowingly elicited false evidence or allowe d false evi dence to go uncorrected. See Giglio v. United States , 405 U.S. 150, 15 3 (1972); United States v. Martin , 59 F.3d 767, 770-71 (8th Cir. 1995).
Defendants also argue the government elicited false testimony that batteries were stolen from the construction site. The argument is based up on supposedly “undisputed” testimony of the construction contractor and subcontractor that nothing was ever stolen from the site. However, we ag ree with the district court that the evidence on this issue was contra dictory. The defendants’ out-of-court admissions included claims they had successfully stolen items from the site, including batteri es. There was also evidence the construction workers did not keep track of used batteries. Thus, defendants failed to establish the government knowingly elicited false testimony on this issue.

V. Other Trial Issues

. A. A Discovery Issue . Defense co unsel agreed in the pretrial Omnibus Hearing Report to provide the government, at least five days prior to trial, the names an d addresses of their trial witnesses and copies of all statements made by each witness.-21-

Bryan Sheppard’s witness list included “[a]ny and al l witnesses previously endorsed by the Government.” When the government learned that defense counsel had recorde d investigatory statements from some government witnesses, it moved to compe l production of the statements as required by the Omnibus Hearing Report. Brya n Shep pard objected that these statements were merely for cross-examination and th e listi ng of endorsed government witnesses was mere boiler plate. The district cour t
con cluded the statements were within the scope of the Hearing Report and compelled their production, and we denied Bryan’s petition for a writ of mandamus on this issue. On ap peal, Bryan argues the district court’s order to produce violated the Jencks Act, 18 U.S.C. § 3500, and Fed. R. Crim. P. 26.2. We disagree. It may be that th e gover nment

would not have been entitled to compulsory discovery of these witnes s statements. SeeFed. R. Crim. P. 16(b)(2), 26.2(a); cf. United Sta tes v. White , 750 F.2d 726, 728 (8th Cir. 1984). B ut that did not bar counsel from agreeing to mutual pretrial discovery in the Omnibus Hearing Report. The district court’s order interpreting and enforci ng that agreement was not an abuse of its substantial case managemen t discretion.

B. An Alibi Instruction Issue . Skip Sheppard argues the district court violated his right to have the jury consider a legally and factually supportable defense theory when it denie d his requested alibi instruction: “[if], after considering all the evidence, you have a reasonable doubt that defendant was present, then you must find him or her not guilty.” SeeEighth Circuit Pattern Jury Instruction No. 9. 07. The court denied this request on the ground that Sheppard could b e convicted of aiding and abetting an arson without bein g present at the site. There is certainly support for that analysis. Se e United States v. Agofsky , 20 F.3d 86 6, 871-72 (8th Cir. 1994). On the other hand, the gover nment’s factual theory was that Skip Sheppard actually participated in the arson at the site, and Skip’s alibi evidence -- testimony by his ex-girlfriend -- tended to refute that theo ry. With the merits of the alibi instruction issue rather closely balanced, w e reject the c ontention on appeal for the reasons stated in United States v. Dawn , 89 7 F.2d 1444, 1450 (8th Cir. 1990): “The alibi defense was argued in closing, the jury-22-

was c learly instructed that the government had to prove all elements of the charg e beyon d a reasonable doubt, and the evidence against [Skip Sheppard] was relativel y strong. The error, if any, was clearly harmless.”

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

. A. Life Imprisonment . Defendants argue they were improperly sentenced to life in prison under 18 U.S.C. § 844(i) because the firefighters proximatelycaused their own de aths 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 explo sives in the trailers. We review that sentencing finding for clear error. Se e Unite d States v. Berndt , 86 F.3d 803, 810 (8th Cir. 1996). There was evidence tha t firefight ers 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 explosive s in the trailers that exploded. On this record, the
co urt’s finding that the firefighters were unaware of the explosives and therefore no t negligent in continuing to fight the trailer fire was not clearly erroneous.
B. Downward Departure . The district court ap plied U.S.S.G. § 2A1.1, the firstdegree murder guideline, to determine defendants’ base o ffense 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 inte ntionally or knowingly.” Richard Brown argues the district court erred in not departing downward for this reason. The court-23-

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

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

We h ave carefully considered the other issues and arguments raised b y defendants on appeal and conclude they are without merit. The judgment s of the district court are affirmed.
A true copy.

Attest:

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