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. *
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___________

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 States District Judge for the *

Southern District of Iowa, sitting by designation.

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___________

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 burning pickup truck on the west side of the site

and joined the second pumper on the east side, where an aluminum storage trailer

containing 25,000 pounds of explosives was on fire. The trailer exploded, instantly

killing six firefighters and igniting a second trailer filled with 30,000 pounds of
The HONORABLE JOSEPH E. STEVENS, JR., United States District Judge 1

for the Western District of Missouri, presided over the trial after the HONORABLE D.

BROOK BARTLETT, United States District Judge for the Western District of

Missouri, withdrew from the case because of illness. 

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explosives, which also exploded. Over seven years later, Darlene Edwards, Richard

Brown, Earl (Skip) Sheppard, Bryan Sheppard, and Frank Sheppard were indicted and

convicted of the capital offense of aiding and abetting arson that caused the deaths of

the firefighters. They appeal their convictions and life sentences. The primary issue is

whether their Confrontation Clause rights as defined in Bruton v. United States, 391

U.S. 123 (1968), and its progeny were violated by the government’s reliance on

testimony by numerous witnesses relating each defendant’s out-of-court admissions of

complicity, and by the district court’s refusal to grant either their motions for severance 1

or mistrial. The court instead allowed government witnesses to replace references in

the admissions to codefendants with neutral pronouns and then instructed the jury to

consider each admission only against the declarant. We affirm. 

I. Sufficiency of the Evidence.

The highway construction site was patrolled by two security guards. At 3:15

a.m., one guard thought she saw two people walking down the highway. The guards

looked for trespassers, leaving one of their vehicles, a pickup truck, parked on the west

side. They drove to a nearby convenience store, the Quik Trip, and learned the store

manager had not seen anyone. As the guards were leaving the store, a car pulled up and

the driver yelled there was a fire at the construction site. The guards returned and

reported their pickup truck was on fire and a second fire could be seen on the east side.

At 4:08 a.m., the first trailer exploded, killing the six firefighters. 

Investigators concluded the pickup truck fire started when gasoline was poured

into the driver’s side of the cab and ignited, and the trailer fire began in the tire area and

became so hot that the walls of the trailer ignited and caused the ANFO explosives to
Edwards argues the district court committed plain error by admitting a statement 2

that was not against her penal interest. We disagree. The statement was properly

admitted as the admission of a party opponent under Fed. R. Evid. 801(d)(2)(A). See

United States v. Coco, 926 F.2d 759, 760 (8th Cir. 1991). 

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explode. The investigation into who caused the fires was frustrated by a lack of

witnesses and surviving physical evidence. After years of dead ends, the explosions

were reenacted on a national television program, Unsolved Mysteries, accompanied by

a well-publicized $50,000 reward, extensive local publicity, and a phone number for

reporting tips. Defendants lived in Marlborough, a neighborhood adjacent to the

construction site. Frank and Skip Sheppard are brothers, Bryan Sheppard is their

nephew, Richard Brown is Bryan Sheppard’s best friend, and Darlene Edwards was

living with Frank Sheppard at the time of the explosion. Many callers reported that

defendants had repeatedly boasted of starting the fires. These indictments followed.

The government’s evidence at trial included Darlene Edwards’s 1995 taperecorded statement. Edwards told investigators that sometime between 1:30 and 2:30 2

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.
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Fifteen witnesses testified to admissions by Richard Brown, for example, that “he

went down there to steal and on the way down there they were out of gas and had to get

some gas,” that he got mad trying to get into the trailer and lit a fire with gas, and that

they set a pickup truck and then a trailer on fire. Seven witnesses testified to admissions

by Skip Sheppard, for example, that he and others had been at the site to steal, that

“they were stealing tools from the construction site,” that they “set fire to cover up the

stuff they had taken,” and that the “gas came from the Quik Trip station on 71

Highway.” Thirteen witnesses testified to admissions by Bryan Sheppard, for example,

that “they went to steal batteries and they set the fire to cover their tracks and they saw

two security guards and they ran,” and that “he set a fire as a diversion to go steal some

explosives.” One witness overheard Bryan Sheppard say to Frank, “I’m not like you

and the other guys. I can’t live with myself because of the death of them firemen, and

it’s eating me up.” Twelve witnesses testified to admissions by Frank Sheppard, for

example, that “the fire was set as a diversion and that they didn’t know explosives were

in the dump truck,” that “someone had drove him and someone else to get some gas that

they had used to start the fire,” and that “they were down there trying to get into the

trucks and they weren’t able to get anything and decided to pour gasoline on them and

get them on fire.”

Defendants argue the evidence was insufficient because the government did not

introduce substantial independent evidence corroborating their out-of-court admissions.

It is well-settled that “a conviction must rest upon firmer ground than the

uncorroborated admission or confession of the accused.” Wong Sun v. United States,

371 U.S. 471, 488-89 (1963). However, “[w]here the crime involves physical damage

to person or property, the prosecution must [only] show that the injury for which the

accused confesses responsibility did in fact occur, and that some person was criminally

culpable. . . . There need in such a case be no link, outside the confession, between the

injury and the accused who admits having inflicted it.” Id. at 489-90 n.15 (citations

omitted); see also United States v. Jacobs, 97 F.3d 275, 283 (8th Cir. 1996); United

States v. Opdahl, 610 F.2d 490 (8th Cir. 1979). Here, there was physical evidence that
Although the issue was not briefed, we doubt that causing the explosion was

3

even an element of the government’s case. See United States v. Ryan, 9 F.3d 660, 668

(8th Cir. 1993), aff’d, 41 F.3d 361 (8th Cir. 1994) (en banc). 

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arson caused the pickup truck fire and circumstantial evidence that arson caused the

trailer fire. Therefore, independent corroboration of the admissions was not required.

Moreover, we reject defendants’ premise that the government’s case lacked

corroborating evidence. Becky Edwards, Darlene’s daughter, testified that she heard

all five defendants planning to steal from the construction site about one week before

the explosion. Investigators found a gas can on the site that did not belong to the

construction contractors, and a witness testified that Frank and Skip Sheppard had many

gas cans as part of their lawn mowing business. A number of witnesses saw the

defendants in various groups in the Marlborough neighborhood before and after the

explosions. One saw Richard Brown’s car driving at high speed a short distance from

the construction site three to five minutes after the first trailer exploded. Another saw

Frank and Skip Sheppard and two others pull up to their mother’s house near the

construction site five to ten minutes after the explosion. Another saw Bryan Sheppard

and Richard Brown around 7:30 a.m., after the explosion; Bryan smelled of gasoline and

smoke and had numerous scratches and abrasions. Taken as a whole, the evidence

tends to establish the trustworthiness of defendants’ many admissions. 

Defendants further argue the government failed to prove that fire can cause

ANFO to explode because its opinion evidence to this effect did not meet the standards

of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 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.”
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The blast cone from the explosion was consistent with this hypothesis, and no more

plausible explanation was put forth. The evidence was sufficient for a reasonable jury

to find that defendants set the fire that caused the fatal explosions. 

Finally, defendants argue that inconsistencies between some of their admissions

and other evidence make the admissions unreliable, and also that the evidence only

established mere presence or mere association. We conclude these were issues for the

jury. “To convict under the aiding and abetting statute, 18 U.S.C § 2, the government

need only prove that [each] defendant associated himself with the unlawful venture,

participated in it as something he wished to bring about, and by his action sought to

make the activity succeed.” United States v. Clark, 980 F.2d 1143, 1146 (8th Cir.

1992). Viewing the trial record in the light most favorable to the government, as we

must, we conclude the evidence was more than sufficient to convict each defendant of

aiding and abetting arson in violation of 18 U.S.C. §§ 844(i) and 2.

II. Confrontation Clause Issues.

 

Prior to trial, the district court denied defendants’ motions to sever the joint trial

based on their contention that introduction of their numerous out-of-court admissions

would violate the Sixth Amendment’s Confrontation Clause as construed in Bruton.

Instead, the court ordered Darlene Edwards’s statement redacted to replace inculpatory

references to her codefendants with neutral pronouns such as “we,” “they,” “someone,”

and “others.” The court also approved the government’s plan to instruct its witnesses

not to mention the names of codefendants when testifying to each defendant’s out-ofcourt admissions. During the trial, the court repeatedly instructed the jury to consider

each admission only against the declarant. On appeal, defendants argue their

Confrontation Clause rights were seriously compromised by the government’s reliance

on some fifty-nine witnesses who testified to defendants’ various out-of-court

admissions. No defendant testified at the trial.
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The principles that frame this issue were summarized in Richardson v. Marsh,

481 U.S. 200, 206-07 (1987):

The right of confrontation includes the right to cross-examine witnesses.

Therefore, where two defendants are tried jointly, the pretrial confession

of one cannot be admitted against the other unless the confessing

defendant takes the stand.

Ordinarily, a witness whose testimony is introduced at a joint trial

is not considered to be a witness “against” a defendant if the jury is

instructed to consider that testimony only against a codefendant. This

accords with the almost invariable assumption of the law that jurors follow

their instructions. . . . In Bruton, however, we recognized a narrow

exception to this principle: We held that a defendant is deprived of his

Sixth Amendment right of confrontation when the facially incriminating

confession of a nontestifying codefendant is introduced at their joint trial,

even if the jury is instructed to consider the confession only against the

codefendant.

In Bruton, a nontestifying codefendant’s confession to a postal inspector specifically

named petitioner Bruton. The Court held that a jury instruction to consider the

confession only against the codefendant was inadequate to protect Bruton’s

Confrontation Clause rights. “[T]here are some contexts in which the risk that the jury

will not, or cannot, follow instructions is so great, and the consequences of failure so

vital to the defendant, that the practical and human limitations of the jury system cannot

be ignored. Such a context is presented here, where the powerfully incriminating

extrajudicial statements of a codefendant, who stands accused side-by-side with the

defendant, are deliberately spread before the jury in a joint trial.” 391 U.S. at 135-36.

The Court left open the question whether a confession or admission would be

admissible against the declarant in a joint trial if it was redacted to eliminate references

to codefendants. See 391 U.S. at 133-34 & n.10.
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In Richardson, the codefendant’s written confession to police was redacted to

eliminate all references to respondent Marsh. Observing that the jury is more likely to

obey a limiting instruction when the confession is linked to a codefendant only by other

trial evidence, the Court held “that the Confrontation Clause is not violated by the

admission of a nontestifying codefendant’s confession with a proper limiting instruction

when, as here, the confession is redacted to eliminate not only the defendant’s name,

but any reference to his or her existence.” 481 U.S. at 211.

Richardson did not involve the common situation we face here -- redactions that

refer to joint activity with other culprits but eliminate any specific identification of the

declarant’s codefendants. The Supreme Court recently considered a variation of this

problem in Gray v. Maryland, 118 S. Ct. 1151 (1998). The codefendant’s written

confession to police was redacted by replacing specific references to petitioner Gray

with a blank space or the word “deleted” or “deletion.” A police officer read the

redacted confession and then testified that after receiving it, he was able to arrest Gray.

Distinguishing Richardson, a closely divided Court held that this confession falls within

the class of statements to which Bruton’s protections apply. “The inferences at issue

here involve statements that, despite redaction, obviously refer directly to someone,

often obviously the defendant, and which involve inferences that a jury ordinarily could

make immediately, even were the confession the very first item introduced at trial.

Moreover, the redacted confession with the blank prominent on its face, in Richardson’s

words, ‘facially incriminat[es]’ the codefendant.” 118 S. Ct. at 1157 (emphasis in

original). The Court also emphasized the practical aspects of the redaction process: 

Additional redaction of a confession that uses a blank space, the word

“delete,” or a symbol, however, normally is possible. Consider as an

example a portion of the confession before us: The witness who read the

confession told the jury that the confession (among other things) said,

“Question: Who was in the group that beat Stacy?
Defendants’ contention on appeal is that the district court erred in denying

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 question

whether the trial court properly construed Bruton and its progeny in admitting redacted

out-of-court declarations as an issue of law, and we do likewise. 

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“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. Neither Richardson nor Gray discussed the admissibility of

4

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.
This is illustrated by the key admissions in the videotaped statement of Darlene 5

Edwards, the only transcribed statement to authorities introduced at trial and therefore

potentially the most incriminating of the many out-of-court declarations:

Frank and I had come home. . . . Someone come up and said they’d run

out of gas. Wanted to know, could I take them down to get some gas,

right? . . . Okay, and I took them down to Quik Trip. . . . The Quik Trip

at 85th and 71 Highway. Yeah, they went around. They got some gas.

They got in the car. They said the car was up the road. I said, what are

you doing up there? They said, well, we’re just doing 4-wheeling up in

the hills, right? So, we get up there. Like, we’re going to go over here

and over there, and I said, what are you doing? Well, we’re going to steal

something. We’re going, we’re gonna take care of something. I said,

well, look, I’m not staying here and playing if you are playing with

gasoline. I’m not getting my funky ass blown up . . . and I left them there,

period! And then after I had gotten home and gotten in bed. . . . is

probably what must have woke Frank up, you know, when I’d gotten

undressed and got back in bed. 

As in Jones, the use of “they” and “someone” did not violate Bruton because “the

manner of presenting the confession and the context [did] not lead the jury directly to

the [co]defendant[s].” 101 F.3d at 1271 n.5.

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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. With improper inferences thus

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
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not a situation, like the Court faced in Gray, in which additional redaction is normally

possible. When an admission refers to joint activity, it is often impossible to eliminate

all references to the existence of other people without distorting the declarant’s

statement. This was recognized in Gray, where the additional redaction favored -- “Me

and a few other guys” -- has precisely the same effect as the redactions used in this

case. Because joint trials “play a vital role in the criminal justice system,” it is

important to adopt workable redaction standards. Richardson, 481 U.S. at 209. 

Having concluded that the district court’s approach to the overall joint trial and

redaction issues was not infected with legal error, we must consider whether the court

in implementing that approach abused its discretion in a way that requires a new joint

trial or separate trials. First, defendants argue that the government’s opening statement

and closing argument require a new trial because the prosecutor undid the effect of the

limiting instructions by urging the jury to use each defendant’s admissions in evaluating

codefendants’ cases. See Richardson, 481 U.S. at 211; compare Jones, 101 F.3d at

1270 n.4, with United States v. Bennett, 848 F.2d 1134, 1142 (11th Cir. 1988). We

disagree. The prosecutor’s opening accurately emphasized that each defendant had

made out-of-court admissions -- “Each of these defendants told multiple persons on

multiple occasions that they did it.” In closing, the prosecutor summarized the testimony

in the same manner it was presented to the jury -- using neutral pronouns. There was

no argument that any out-of-court admission facially incriminated a codefendant, and

no argument that was inconsistent with the court’s cautionary instructions to consider

admissions only against the declarant. 

Second, invoking the rule of completeness, defendants argue the district court

erred in prohibiting cross-examination to establish that an out-of-court admission was

exculpatory as to one or more codefendants. For example, one witness testified Richard

Brown said “him and a group of people was there at the explosion.” The phrase “group

of people” was a redaction to avoid incriminating Bryan Sheppard and Skip Sheppard.

The court ruled that counsel for Frank Sheppard could not ask the
Darlene 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 in

which she denied any involvement in or knowledge of the arson. We disagree. The

rule of completeness is limited to writings and only encompasses additional portions

of the same statement. Moreover, the rule does not empower a court “to admit

unrelated hearsay in the interest of fairness and completeness when that hearsay does

not come within a defined hearsay exception.” United States v. Woolbright, 831 F.2d

1390, 1395 (8th Cir. 1987). 

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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
One witness testified that Darlene Edwards said “at one time Frank had made 7

plans” to steal from the construction site, and that Edwards “would tell us about the

gas, how she went to get the gas and different things that she did with the other

defendants.” Another witness testified when asked why he had not reported certain

admissions to the police, “it was after me and Richard [Brown] had had a conversation.

I didn’t believe him. I didn’t believe him for one second but he told me at one point

that Bryan Sheppard was in on it.” Another witness testified that Skip Sheppard said

“he and a brother were” at the construction site on the night of the explosion. Another

said that when she asked Frank Sheppard why he had not called the police, he said, “I

can’t turn in my family, my friends.” (Emphasis added.) 

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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. The government 7

concedes these were mistakes. The district court immediately instructed the jury to

disregard the blurted testimony, and it twice ordered the testimony stricken from the

record. We have reviewed these instances, individually and cumulatively, and conclude

the district court did not abuse its discretion in denying a mistrial.

Finally, it is well-settled that Bruton errors are subject to harmless error analysis.

See United States v. Miller, 995 F.2d 865, 867 (8th Cir. 1993); Long, 900 F.2d at 1280;

Garcia, 836 F.2d at 391. Darlene Edwards, Richard Brown, and Bryan Sheppard were

virtually unaffected by Bruton issues. None of the blurted redaction failures
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named Edwards or Brown, and only references to “my family, my friends” and “other

defendants” touched on them at all. No defendant objected to the “my family, my

friends” mistake, and the district court struck the reference to “other defendants” and

reminded the jury to only consider the evidence against the confessing defendant. The

one blurted reference to Bryan Sheppard only said he was “in on it,” a relatively

innocuous error in light of his numerous admissions of involvement. None of these

defendants was affected by the district court’s limitations on cross-exam, whereas the

evidence against these defendants was overwhelming. We conclude any Bruton error

was clearly harmless to these three defendants.

Although Frank and Skip Sheppard were more directly affected by the Bruton

issues, we conclude any error was harmless to them as well. Two redaction failures

arguably affected Frank, but the district court’s prompt curative actions reduced any

prejudicial impact. Frank and Skip were most affected by the district court’s limits on

cross-exam, but any prejudice from the restrictions was minor in contrast to the properly

admitted evidence. Twelve witnesses testified to admissions by Frank Sheppard, and

seven witnesses testified to admissions by Skip. As to each, the admissions were

specific, detailed, and consistent. 

For all the foregoing reasons, we conclude the district court did not abuse its

discretion in denying defendants’ various motions for mistrial, new trial, and severance.

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

 

The federal statute of limitations for non-capital crimes is five years. See 18

U.S.C. § 3282. The arson occurred in 1988, more than seven years prior to defendants’

indictments. There is no limitations period for a capital offense, defined as “any offense

punishable by death.” 18 U.S.C. § 3281. The arson statute provides that whoever

commits arson resulting in death “shall also be subject to . . . the death penalty . . . as

provided in section 34 of this title.” 18 U.S.C. § 844(i). Defendants argue their
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prosecutions are time-barred because the death penalty procedures in 18 U.S.C. § 34

were unconstitutional under Furman v. Georgia, 408 U.S. 238 (1972), until amended in

1994, and therefore defendants could not have been subjected to the death penalty for

their 1988 crimes. This argument was rejected in United States v. Manning, 56 F.3d

1188, 1196 (9th Cir. 1995), where the court reasoned that § 3281 “derive[s its]

justification from the serious nature of the crime rather than from a concern about, for

example, what procedural protections those who face a penalty as grave as death are to

receive.” We agree with and follow the Manning decision.

Defendants also argue the district court erred in denying their motion to dismiss

the indictment because the nine-year pre-indictment delay violated their right to due

process. Our cases hold that, to prevail on this claim, defendants have the burden of

proving the delay was unreasonable and actually, substantially prejudiced the defense.

See United States v. McDougal, 133 F.3d 1110, 1113 (8th Cir. 1998); Bennett v.

Lockhart, 39 F.3d 848, 851 (8th Cir. 1994). Relying on Doggett v. United States, 505

U.S. 647 (1992), defendants argue the government should have the burden to prove the

absence of prejudice. This argument is without merit. Doggett involved a challenge to

post-indictment delay under the Speedy Trial Clause of the Sixth Amendment. That

Clause “is wholly irrelevant” to a Due Process Clause challenge to a pre-indictment

delay. United States v. Lovasco, 431 U.S. 783, 788 (1977); accord United States v.

Bischel, 61 F.3d 1429, 1436 (9th Cir. 1995); United States v. Byrd, 31 F.3d 1329,

1339-40 (5th Cir. 1994).

IV. Evidentiary Issues. 

A. Bad Acts Evidence. Defendants argue the district court violated Federal Rule

of Evidence 404(b) in admitting testimony regarding their prior drug use and thievery.

One witness testified: “[Darlene] said they stole machinery and different tools from the

construction site before and she sold it in trade for crack cocaine.” This testimony was

admissible under Rule 404(b) because it was relevant to motive -- the
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government’s claim that defendants went to the construction site to steal equipment to

sell to buy drugs. Other witnesses testified that defendants’ admissions occurred during

drug use. Rule 404(b) does not bar evidence that completes the story of the crime or

explains the relationship of parties or the circumstances surrounding a particular event.

See United States v. Moore, 1998 WL 337961 *5 (8th Cir. 1998). The district court did

not abuse its discretion in admitting this kind of background evidence. A jury “cannot

be expected to make its decision in a void -- without knowledge of the time, place, and

circumstances of the acts which form the basis of the charge.” United States v. Moore,

735 F.2d 289, 292 (8th Cir. 1984). 

Darlene Edwards and Frank Sheppard argue the district court erred in admitting

testimony that they admitted burning her car six weeks before the arson to collect

insurance proceeds. The government offered this evidence to prove motive -- that these

defendants needed money to buy drugs. The district court did not abuse its broad

discretion in concluding the prejudicial effect of this evidence did not outweigh its

probative value. See United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995)

(standard of review).

B. Limits on Cross-Examination. Darlene Edwards argues the district court

erred in limiting her cross-exam and impeachment intended to support Edwards’s theory

that one of the construction site security guards committed the arson to divert attention

from the guard’s insurance fraud. Bryan Sheppard argues the district court erred in

restricting cross-exam regarding the criminal history of various government witnesses.

Frank Sheppard argues the district court erred in not allowing cross-exam to impeach

a witness by showing that her out-of-court statement that Darlene Edwards had taken

a polygraph test was untrue. The district court allowed defense counsel to extensively

cross-examine the government’s witnesses. The rulings in question were not an abuse

of the court’s substantial discretion regarding issues of relevance, remoteness in time,

and collateral impeachment. See United States v. Caldwell, 88 F.3d 522, 524 (8th Cir.

1996) (standard of review).
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C. Excluded Polygraph Examinations. Bryan Sheppard and Richard Brown

argue the district court erred in excluding favorable results of polygraph examinations

without conducting a hearing under Daubert v. Merrell Dow, 509 U.S. 579 (1993). The

record on appeal does not reflect that defendants preserved this issue by offering the

exam results into evidence and obtaining a ruling on their admissibility. If the district

court did bar the admission of polygraph results, that ruling cannot be plain error. See

United States v. Scheffer, 118 S. Ct. 1261 (1998). 

D. Admission of Victim Photographs. The district court excluded a number of

photographs of the deceased firefighters but admitted four of the less gruesome

photographs. Defendants argue this was error because death was not an element of the

crime and the photographs were too prejudicial. At the time this issue arose at trial, the

court had advised counsel that it considered causing the firefighters’ deaths to be an

element of this crime under 18 U.S.C. § 844(i). In objecting to the photographs,

defense counsel noted our decision to the contrary in United States v. Ryan, 9 F.3d at

668, but did not offer to stipulate that the government need not prove defendants caused

the victims’ death. Therefore, the photos were clearly relevant when admitted. The

court did not abuse its discretion in concluding their probative value was not

substantially outweighed by the risk of unfair prejudice. See Fed. R. Evid. 403; Walle

v. Sigler, 456 F.2d 1153, 1154-55 (8th Cir. 1972). 

E. Cross-Exam on Failure To Call a Witness. Richard Brown lived with his

grandmother. His defense was that he was home asleep at the time of the explosions.

His witnesses included a neighbor who testified to seeing him after the second

explosion, dressed only in pants, with an elderly woman. Brown also called his uncle

to rebut testimony that Brown’s truck was seen speeding down the road moments after

the first explosion. On cross-exam, the uncle acknowledged that Brown’s grandmother

had been called to testify and had come to the courthouse. The grandmother never

testified, and during closing argument the government drew attention to her by saying,

“Why do you need grandma to alibi for you. Aren’t you a big boy now?” Brown
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argues this was improper cross-exam and closing argument warranting a new trial. We

disagree. “The prosecutor is free to comment on the failure of the defendant to call an

available alibi witness.” United States v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983).

F. False Testimony Issues. Bryan Sheppard argues the government violated his

right to due process by deliberately or negligently presenting false testimony. A

government witness testified that Bryan made admissions at a home in the fall of 1989,

a time when he was in prison. The district court denied Bryan’s motion to strike this

testimony as impossible but allowed defense counsel to effectively impeach the witness

as to the date. Later in the trial, the error in the date was confirmed by the admission

of jail records. The government argued in closing that the witness was mistaken as to

the date but not the substance of the testimony. This episode falls well short of

establishing that the government either knowingly elicited false evidence or allowed

false evidence to go uncorrected. See Giglio v. United States, 405 U.S. 150, 153

(1972); United States v. Martin, 59 F.3d 767, 770-71 (8th Cir. 1995).

Defendants also argue the government elicited false testimony that batteries were

stolen from the construction site. The argument is based upon supposedly “undisputed”

testimony of the construction contractor and subcontractor that nothing was ever stolen

from the site. However, we agree with the district court that the evidence on this issue

was contradictory. The defendants’ out-of-court admissions included claims they had

successfully stolen items from the site, including batteries. There was also evidence the

construction workers did not keep track of used batteries. Thus, defendants failed to

establish the government knowingly elicited false testimony on this issue. 

V. Other Trial Issues.

A. A Discovery Issue. Defense counsel agreed in the pretrial Omnibus Hearing

Report to provide the government, at least five days prior to trial, the names and

addresses of their trial witnesses and copies of all statements made by each witness. 
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Bryan Sheppard’s witness list included “[a]ny and all witnesses previously endorsed by

the Government.” When the government learned that defense counsel had recorded

investigatory statements from some government witnesses, it moved to compel

production of the statements as required by the Omnibus Hearing Report. Bryan

Sheppard objected that these statements were merely for cross-examination and the

listing of endorsed government witnesses was mere boiler plate. The district court

concluded the statements were within the scope of the Hearing Report and compelled

their production, and we denied Bryan’s petition for a writ of mandamus on this issue.

On appeal, Bryan argues the district court’s order to produce violated the Jencks Act,

18 U.S.C. § 3500, and Fed. R. Crim. P. 26.2. We disagree. It may be that the

government would not have been entitled to compulsory discovery of these witness

statements. See Fed. R. Crim. P. 16(b)(2), 26.2(a); cf. United States v. White, 750 F.2d

726, 728 (8th Cir. 1984). But that did not bar counsel from agreeing to mutual pretrial

discovery in the Omnibus Hearing Report. The district court’s order interpreting and

enforcing that agreement was not an abuse of its substantial case management

discretion. 

B. An Alibi Instruction Issue. Skip Sheppard argues the district court violated

his right to have the jury consider a legally and factually supportable defense theory

when it denied his requested alibi instruction: “[if], after considering all the evidence,

you have a reasonable doubt that defendant was present, then you must find him or her

not guilty.” See Eighth Circuit Pattern Jury Instruction No. 9.07. The court denied this

request on the ground that Sheppard could be convicted of aiding and abetting an arson

without being present at the site. There is certainly support for that analysis. See

United States v. Agofsky, 20 F.3d 866, 871-72 (8th Cir. 1994). On the other hand, the

government’s factual theory was that Skip Sheppard actually participated in the arson

at the site, and Skip’s alibi evidence -- testimony by his ex-girlfriend -- tended to refute

that theory. With the merits of the alibi instruction issue rather closely balanced, we

reject the contention on appeal for the reasons stated in United States v. Dawn, 897

F.2d 1444, 1450 (8th Cir. 1990): “The alibi defense was argued in closing, the jury
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was clearly instructed that the government had to prove all elements of the charge

beyond a reasonable doubt, and the evidence against [Skip Sheppard] was relatively

strong. The error, if any, was clearly harmless.”

C. The Motion to Recuse. Frank Sheppard argues the district court abused its

discretion in denying his motion for a new trial and recusal because a pattern of judicial

comments and rulings reflected a bias calling into question the overall fairness of the

trial. We have reviewed the rulings cited and conclude they do not reflect judicial bias.

Nor do they establish that Sheppard was denied a fair trial. See United States v. Turner,

975 F.2d 490, 492-93 (8th Cir. 1992) (standard of review). 

VI. Sentencing Issues.

A. Life Imprisonment. Defendants argue they were improperly sentenced to life

in prison under 18 U.S.C. § 844(i) because the firefighters proximately caused their own

deaths by approaching the burning trailer despite being warned of explosives.

Defendants challenge the district court’s finding that the firefighters were not aware of

the explosives in the trailers. We review that sentencing finding for clear error. See

United States v. Berndt, 86 F.3d 803, 810 (8th Cir. 1996). There was evidence that

firefighters called to the construction site for previous fires were cautioned there were

explosives on the scene. However, there was conflicting evidence whether the deceased

firefighters were warned of explosives in the trailers that exploded. On this record, the

court’s finding that the firefighters were unaware of the explosives and therefore not

negligent in continuing to fight the trailer fire was not clearly erroneous.

B. Downward Departure. The district court applied U.S.S.G. § 2A1.1, the firstdegree murder guideline, to determine defendants’ base offense level for arson resulting

in death. See U.S.S.G. § 2K1.4(c). Under § 2A1.1, the court may depart downward

“[i]f the defendant did not cause the death intentionally or knowingly.” Richard Brown

argues the district court erred in not departing downward for this reason. The court
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was aware of its discretion to depart downward. Therefore, its refusal to depart is not

reviewable on appeal. See United States v. Tocco, 135 F.3d 116, 131 (2d Cir. 1998).

 

C. Evidence of Actual Innocence. Frank Sheppard argues the district court erred

at sentencing by not admitting polygraph examination results suggesting he was

innocent, and testimony suggesting he was too drunk to have committed the crime. It

is not clear from the sentencing record that this issue was properly preserved. In any

event, the court did not abuse its discretion in excluding evidence of actual innocence

at a non-capital sentencing. Cf. Franklin v. Lynaugh, 487 U.S. 164, 172-74 (1988). 

We have carefully considered the other issues and arguments raised by

defendants on appeal and conclude they are without merit. The judgments of the district

court are affirmed.

A true copy.

Attest:

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