### The Honorable Richard H. Kyle, United States District Judge 1 

### for the District of Minnesota, sitting by designation.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-2744

___________ United States of America, * * Appellee, * Appeals from the United States * District Court for the v. * Eastern District of Missouri. * Daniel Basile, * * Appellant. *

___________ No. 96-2746

___________ United States of America, * * Appellee, * * v. * * Richard DeCaro, * * Appellant. *

___________ Submitted: January 16, 1997 Filed: April 1, 1997

___________ Before BOWMAN and MURPHY, Circuit Judges, and KYLE, District Judge. 1

BOWMAN, Circuit Judge.

### The Honorable Stephen N. Limbaugh, United States District 2 

### Judge for the Eastern District of Missouri.
-2- Richa rd DeCaro and Daniel Basile appeal from the judgments of th e District Court on jury verdicts fin ding them guilty on charges of murder- 2 for-hire, conspiracy to commit murder-for-hire, and mail fraud. We affirm

.

I.
This case arises from the execution-style murder of Elizabeth D eCaro, wife of Richard DeCaro, on March 6, 1992. She was found shot to death tha t Friday night in the kitchen of her home in St. C harles, Missouri (a suburb of St. Louis), the gun barrel having been pressed up against the back of her nec k and fired twice. Her husband, who recently had been having a n extram arital affair with his secretary, had taken the couple’s fou r children (and the family dog, which was not known to travel with the famil y because it was very e xcitable around strangers) to the Lake of the Ozarks in south Missouri for the weekend. He had told Elizabeth that he wanted a “daddy’s weekend” alone with the children. De Caro and the children left St. Charl es shortly after noon on March 6, while Elizabeth was still a t work. Later that afternoon, Elizabeth was murdered and the family’s Blaze r was stolen from the garage of the home. These i ncidents followed by about
a m onth the theft of the family van from the DeCaro home in the earl y morning hours of February 8, 1992; the van was f ound in southeast Missouri and had been burned. DeCaro reported that vario us items were missing from the van, including the garage door opener for the DeCaro home.

A few days after the murder, first Basile and then DeCaro wer e arrested on state charges of murder. In May 199 4, Basile was tried as the hit man, was convicted, and was sentenced to death. His

### Basile was charged with and found guilty of two counts of 3 

### mail fraud based on the filing of fraudulent insurance claims for the loss of the two DeCaro vehicles. DeCaro was charged with and found guilty of those two counts plus three additional counts of mail fraud based on other fraudulent insurance claims filed for the loss of personal property stolen from the DeCaro home at the time of Elizabeth’s murder and on a claim filed on a policy insuring Elizabeth’s life.
-3- direct appeal in the state proceeding has been submitted to the Missouri Supreme Court. In a separate trial in September 1994, DeCaro was acquitte d on state murder charges.

In May 1995, a federal grand jury indicted Basile and DeCaro o n murder -for-hire and mail fraud charges. Specifically, both men wer e charg ed with use of the mail or facilities in interstate commerce wit h intent to commit murder-for-hire, 18 U.S.C. § 19 58 (1988 & Supp. IV 1992); conspiracy to commit murder-for-hire, 18 U.S.C. §§ 1958, 371 (1988 & Supp. IV 1992)); and mail fraud, 18 U.S.C. § 1341 (Supp. IV 1992). After a 3 joint jury trial both men were found guilty of all charges against them an d each was sentenced to life in prison.

DeCaro an d Basile both raise the same three issues on appeal. They claim this federal prosecution, following as it did the state prosecution, is a violation of their rights under the Double Jeopardy Clause of th e Const itution. They also argue that the District Court abused it s dis cretion in denying their motions for separate trials. Finally, bot h challenge the court’s denial of their motions for judgment of acquittal, and contend that there was insufficient evidence that interstate facilitie s were used in furtherance of the murder-for-hire scheme.

### -4- II. DeCaro and Basile argue that they we re twice put in jeopardy for the
sam e crime in violation of their constitutional rights, see U.S. Const
. amend. V, and that the District Court erred in refusing to dismiss th e indictme nt on those grounds. We review de novo. See United States v

. McMasters , 90 F.3d 1394, 1401 (8th Cir. 1996), cert. denied , 117 S. Ct

. 718, 783 (1997).

A.
It has long been the law under the doctrine known as dual sover eignty that federal prosecution following state prosecution “of the same person for the same acts” does not violate the defendant’s criminal rights

. Abbate v. United Stat es , 359 U.S. 187, 194 (1959); see also United States

v. Hall s , 40 F.3d 275, 277-78 (8th Cir. 1994), cert. denied , 115 S. Ct

. 1721 (1995). Accordi ng to the tenets of dual sovereignty, each sovereign derives its power from a different constitutional source, so both ma y prosecute and punish the same individual for the same act. See Abbate , 35 9 U.S. at 193-94. Basi le acknowledges that his federal convictions “do not appear to offend the double jeopardy clause of the Fifth Amendment under current Supreme Court law.” Brief of Basile at 31. DeCaro, on the other hand, would have this Court decide that, because federal prosecution for the murder of Elizabeth DeCaro followed his acqu ittal on state charges for the same act, “the purpose [of the federal prosecution] is improper and th e prosecution should be quashed.” Brief of DeCaro at 43. We disagree.

The Supr eme Court has created an exception to the dual sovereignt y do ctrine, concluding that a state prosecution will be deeme d unconstitutional when “the state prosecution was a sham and

### -5-

a cover for a federal prosecution, and thereby in essential fact another federal prosecution.” Bartkus v. Illinois , 359 U.S. 121, 124 (1959). Her e DeCaro argues the converse: that the federal government was used as a “tool” by state prose cutors after the state prosecution of DeCaro failed, in or der to advance a state interest--the conviction of DeCaro for th e murder of his wife--where the state could not legally do so itself. See Unit ed States v. Talley , 16 F.3d 972, 974 (8th Cir. 1994). As a lega l propos ition, DeCaro’s claim requests an extension of Bartkus , but h e dir ects us to no opinion wherein this Court has held that the Bartku s exception applies when it is the federal prosecution that follows the stat e prosecution. We acknowledge, however, that other panels of this Court hav e assumed, without squa rely deciding, that a Bartkus -type exception applies to a situation such as we have here. See , e.g. , United States v. Williams , 104 F.3d 213, 216 (8th Cir. 1997); Halls , 40 F.3d at 278. Because the question was not briefed and argued, and because it i s not necessary to our holding today, we do not decide how far Bartkus may be extended. For even if DeCaro’s claim properly is regarded as falling within the Bartkus exception to the dual sovereignty doctrine, the claim fails for lack of fac tual foundation. DeCaro has not directed this Court to anything in the record that supports his clai m of collusion between the two sovereigns. Indeed, his claim is based on little more than chronology : he was acquitted on s tate charges, and then later he was tried on federal charges arising from the same events. But it would take far more than mer e chronologyof this sort to render the federal government a “tool” of the state, or the federal prosecution “a sham and a cover” for a de facto stat e prosecution. DeCaro further asserts that the federal prosecution must have bee n manipulated by the state because the prosecution was for “an

### -6-

unrema rkable case of spousal murder” and “a garden variety contrac t killing” with “questionable” federal interest. Brief of DeCaro at 44. We disagree. While contract killing, standing alone, may not be a federa l crime, it may become such when its perpetration involves the use of th e mail or facilities in interstate commerce. The independence and importanc e of the federal intere st in protecting the channels of interstate commerce fromthe taint of crime is unaffected by DeCaro’s previous acquittal i n state court; it remai ns just as important and worthy of vindication after the state trial as it was before. “[T]he federal government had a n interest, independent of any state interest, to ensure that an individual who is believed to ha ve violated a federal statute is prosecuted for that violation.” Talley , 16 F.3d at 974.

We ho ld that the dual sovereignty doctrine is fully applicable i n this case and that DeCaro’s double jeopardy claim therefore lacks merit. B.
Both DeCaro and Basile argue that th e United States Attorney in this
case nevertheless violated the constitutional prohibition against double jeopard yby failing to follow an internal United States Department o f Justice (DoJ) policy concerning duplicative and successive prosecution by the federal government. Known as the Petite policy for the case wherein the Supreme Court first described it, see Petite v. United States , 361 U.S

. 529, 531 (1960) (per curiam), it “was formulatedby the Justice Department in direct response to” the opinions in Bartkus and Abbate , Rinaldi v

. United States , 434 U.S. 22, 28 (1977) (per curiam). Under the policy, a United States attorney may not prosecute a perso n in federal court “if the allege d criminality was an ingredient of a previous state prosecutio n against that person” unless the federal

### -7-

prosec ution “is specifically authorized in advance by the [DoJ] itself , upo n a finding that the prosecution will serve ‘compelling interests o f federal law enforcement.’” Thompson v. United States , 444 U.S. 248, 248 (1980) (per curiam). DeCaro and Basile argue that the federal government had no “compelling interests” to be served here.
We are not convinced that the federal prosecution in this case failed to meet the “compelling interests” requirement of the Petite policy. We need not and do not decide the question, however, because the Petite polic y is “not constitutionally mandated,” Rinaldi , 434 U.S. at 29, and otherwise “confers no substantive rights on the accused,” United States v. Moore , 82 2 F.2d 35, 38 (8th Cir. 1987) (per curiam). Thus the DoJ’s implementation of the policy “cannot form the basis of a claim [by a defendant] that the prosecution was improper.” United States v. Lester , 992 F.2d 174, 176 (8t h Cir. 1993). Further, if subsumed in the defendants’ argument is th e contention that the D oJ improperly waived the policy here, we are without authorityto review such a DoJ decision “because the Petite policy is an internal administrative policy .” United States v. Kummer , 15 F.3d 1455, 1461 (8th Cir. 1994).

Notw ithstanding this Court’s continuing affirmation that review o f alleged DoJ Petite policy violations is not available unless sought by th e government itself, DeCaro and Basile argue that we should revisit the issu e and adopt the reasoning of a concurrence in an E ighth Circuit opinion that predate s all of the cases cited above. See Delay v. United States , 60 2 F.2 d 173, 179 (8th Cir. 1979) (Heaney, J., concurring) (suggesting tha t Petite policy “should be enforceable by a defendant in an appropriat e case”), c ert. denied , 444 U.S. 1012 (1980). It is clear, however, tha t this is not the direction in which the Court is headed. See ,

### The government argues that this claim was not preserved for 4 

### review by either DeCaro or Basile because neither renewed his motion for severance at the close of the government’s case or at the end of trial. (DeCaro did renew his motion at sentencing, but by then it was too late to preserve the issue for review.) Therefore, the government contends, we should review the District Court’s denial of the severance motions only for plain error. See United States v. Bordeaux , 84 F.3d 1544, 1547 (8th Cir. 1996). In his reply brief, DeCaro suggests that the District Court granted him a “continuing motion.” Reply Brief of DeCaro at 3. As we read the transcript, however, we think it clear that the court granted the defendants continuing objections to evidentiary rulings, not a “continuing motion” for severance. See Trial Transcript at 1-3 (“The requests will be denied with the exception that the objections that are made can be continuing and can apply not only to the opening statement of the government but to the testimony of government as well.”) (emphasis added). In any event, our review, whether for plain error or for an abuse of discretion, produces the same result.
-8- e.g. , Kummer , 15 F.3d at 1461 (opinion of the Court by Heaney, J.). And in any event, as a panel we are without authority to overrule precedents established by other panels of this Court; that can be accomplished only bythe Court sitting en banc

. See United States v. Knight , 96 F.3d 307, 310 (8th Cir. 1996). III.
DeCaro and Basile also argue that the District Court erred in d enying their motions for severance of their trials. We will not reverse on this 4 ground unless we find that the denial of severance was an abuse o f discretion resulting in “severe or compelling prejudice” to the accused. United States v. Melina , 101 F.3d 567, 571 (8th Cir. 1996) (quoting United States v. Koskela , 86 F.3d 122, 126 (8th Cir. 1996)).

“There is a preference in the federal system for joint trials o f defendants who are in dicted together.” Zafiro v. United States , 506 U.S. 534, 537 (1993). A joint trial is especially compelling

### Wells’s stepmother was the foster mother of Doug Meyer, 5 

### Basile’s half brother. Wells and Basile referred to each other as “brother,” and some of their acquaintances knew them as brothers.
-9- when the defendants are charged as co-conspirators, as is the case here. See United States v. Warfield , 97 F.3d 1014, 1018 (8th Cir. 1996), cert. denied , 117 S. Ct. 1119 (1997); Koskela , 86 F.3d at 126. But whether or not th e codefendants also are charged as co-conspirators, “[t]h e presum ption against severing properly joined cases is strong.” Unite d States v. Delpit , 94 F.3d 1134, 1143 (8th Cir. 1996). DeCaro and Basile claim, however, that they presented antagonistic defenses, so that trying them together was an abuse of the trial court’s discretion and resulted in the necessary prejudice to each to warrant new trials. We disagree. In the first place, we are not persuaded that the two defenses ar e proper lycharacterized as antagonistic. DeCaro, who testified at th e trial, claimed he har dly knew Basile, and denied any participation in the vehicle thefts or the murder. His strategy was to cast blame on Crai g Wells, who was an employee at the Amoco station where DeCaro worked a s servic e manager and who is a relative--of sorts--of Basile. In suppor t 5 of his theory that We lls may have been involved, DeCaro adduced testimony that Wells had access to the DeCaro vehicle keys and that Wells was a know n liar. DeCaro claimed Wells knew of DeCaro’s plans to be out of town on th e day of the murder, an d there was testimony from one of DeCaro’s witnesses that Wells was not at work at the station during the time when the murder mayhave been committed. The jury could have drawn the inference tha t Wells and Basile were the co-conspirators, instead of DeCaro and Basile, with DeCaro making the case against Wells and the government making th e
case agai nst Basile. But it is clear from the transcript that DeCaro’ s counsel did not assum e a role as prosecutor by attempting to prove Basile

### -10-

guiltyof the crimes charged. We do not suggest that DeCaro presented a defense to the government’s case against Basile, but he made no concerted effort to depict Basile as the perpetrator of th e crimes with which DeCaro himself was charged, to the exclusion of all other possible suspects.

As for Ba sile, a defense theory was not apparent from the witnesses he called. Basile di d not testify in his own defense and called only two witnes ses, both of whom were emergency medical personnel who attende d Elizabeth DeCaro at the murder scene and testified as to her condition

. But Basile and DeCaro claim that Basile did have a “defense,” and that it
was laid o ut by Basile’s counsel in his opening statement and closin g argument. In his comments to the jury, counsel conceded that Basile stole the DeCaro vehicles, but he argued against the prosecution theory tha t Basile murdered Elizabeth DeCaro, whether with o r without the collusion of her husband. It is clear, however, that during the evidentiary portion of the trial, Basile conceded nothing. From the trial transcripts it i s apparent that Basile’s counsel closely cross-exa mined the witnesses called by DeCaro, including DeCaro himself, as well as those witnesses called by the government, primarily to undermine the government’s case as to Basile’ s involvement in the murder, not to point an accusing finger at DeCaro. But even if DeCaro’s and Basile’s defenses were mutuall y antagonistic, we would not send the case back to the District Court for ne w trials

. “Mutually antagonistic defenses are not prejudicial per se , ” Zafiro , 5 06 U.S. at 538, and even blame-shifting on the part of th e def endants “is not a sufficient reason for severance,” United States v

. Bordeaux , 84 F.3d 154 4, 1547 (8th Cir. 1996). “[C]o-defendants are often hostile to one another, and one will try frequen tly to ‘point the finger,’ to shift t he blame, or to save himself at the expense of the other. ” Delpit , 94 F.3d

### -11-

at 1143. Such tactics rise to the level of antagonistic defenses requirin g
severance “only when ’there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty .’” Id. (citations to quoted cases omitted) (emphasis in Delpit ). Any conflict in the evidence presented at this trial does nothing of the kind, bu t simply is indicative at most that each defendant was attempting to save hi s own skin by diverting the jury’s attention to the other.

To demons trate the severe or compelling prejudice necessary to show tha t the court abused its discretion in denying severance, “a defendan t must show that his defense was irreconcilable wi th that of the codefendant or that the jury was unable to compartmentalize the evidence.” Bordeaux , 84 F.3d at 1547. As demonstrated by our discussion above, we do no t believe that the defe nses of DeCaro and Basile (to whatever extent Basile actuallyput on a defense) were so antagonistic as to be irreconcilable. Because there was no serious finger-pointing by the defendants toward one anothe r during the evidentiary phase of the trial, notwithstanding som e desperation blame-shifting by counsel in closing arguments, the jury in it s deliberations might have bought into DeCaro’s defense, or Basile’ s “defen se,” or both--or neither. Further, having reviewed the entir e transcri pt, we are satisfied that the jury could not have had an y difficulty compartmen talizing the evidence against each defendant. There
were only two defendants, the charges varied little between DeCaro an d Bas ile and were not complicated, and the issues were not complex. W e conclude that neither DeCaro nor Basile has met his heavy burden o f demonstrating the prejudice required for reversal. See United States v. McGuire ,

### The government also argues that several of the instructions 6 

### given by the court cure any prejudice that may have resulted from the joint trial, citing Zafiro v. United States , 506 U.S. 534, 539 (1993). The record furnished by the parties is incomplete on this point, as copies of the relevant instructions were not included, so we do not rely on this for our holding.
-12- 45 F.3d 1177, 1187 (8th Cir.), cert. denied , 115 S. Ct. 2558 (1995). 6

IV.

Both DeC aro and Basile argue that the evidence was insufficient t o prove the necessary interstate activity to support federal charges and tha t the District Court therefore erred in denying th eir motions for acquittal. DeCaro and Basile do not claim that the evidence was insufficient to prove that DeCaro hired Basile to murder Elizabeth DeC aro, nor do they challenge the mai l fraud convictions related to the filing of insurance claims

. Instead, their sufficiency argument is limited t o the issue of whether the government proved the requisite connection between the use of the mail or facilities in interstate commerce and the murder-for-hire plot.

“Our standard of review on this issue is quite narrow.” Unite d States v. Smith , 104 F.3d 145, 147 (8th Cir. 1997). We view the evidence in the light most favorable to the guilty verdict, giving the government the benef it of all reasonable inferences that may be drawn from th e evidence. After reviewing the evidence under these standards, we wil l
reverse only if we conclude that no reasonable jury could find guilt beyon d
a reasona ble doubt. We may affirm even if the evidence is entirel y circumstantial. See id.

### -13- The relev ant part of the statute under which DeCaro and Basile were convicted in their murder-for-hire scheme reads as follows:

Whoever . . . uses or causes another (including the intende d victim) to use the mail or any facility in interstate o r for eign commerce, with intent that a murder be committed i n violati on of the laws of any State or the United States a s con sideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, . . . if death results, shall be subject to imprisonment for any term of years or for life, or shall be fined not more than $50,000, or both.

18 U.S.C. § 1958(a) (1988). The government included in its addendum a cop y of ju ry Instruction 31, which was given without objection to the lega l elements. Instruction 31 states that the use of the mail or a facility in inters tate commerce with intent to commit murder-for-hire can b e established upon proof that “the mail or a facil ity in interstate commerce
was used as part of the course of activity charged . . . and that one of the reasons for this use was to further the activity described.” Neither defendant having raised a challenge to the legal elements set forth in the instru ction, we consider whether, in keeping with the instruction, th e evidence presented at trial is sufficient to prove that the interstat e transactions at issue were a part of and in furt herance of the murder-forhire scheme.

The evidence, viewed under the standards mentioned above, shows that, in collaboration with DeCaro, Basile stole the DeCaro van from the drivewa y of the home, drove it to southeast Missouri, and burned it, all late one night about one month before the murder. He also stole the family Blazer from the home the afternoon of the murder, stash ed it in a garage his half brother Doug Meyer let him use, and cut it up for parts in the day s following the murder. Additionally, Basile stole items of value

### There was evidence at trial that some of the items Basile 7 

### supposedly removed from the van, and for which DeCaro claimed and received insurance reimbursement, were found in the DeCaro home when authorities were investigating Elizabeth’s murder.
-14- from the v an before he burned it, and from the DeCaro home on the day he 7 murdered Elizabeth. There was uncontroverted evidence that, as a direct result of the thefts, in February 1992 DeCaro filed insurance claims via the mail for the stol en van and for the items purportedly stolen from the van, and that in 1995 (after he was acquitted on state charges of murder) he filed insurance cl aims for the stolen Blazer and the items stolen from the home. The insurance company mailed him checks, which he cashed, for
some of t he claims. Interstate telephone calls and faxes also wer e exchanged between DeCaro and insurance company representatives regarding some of the claims. In addition, late in Decemb er 1991 an application for
an ins urance policy on the life of Elizabeth DeCaro in the amount o f $100,000, naming Richard DeCaro as sole beneficiary, was mailed to the sam e insurance company that wrote the property policies. A confirmation for th e policy sho wing an effective date of January 9, 1992, just days befor e DeCaro began casting about for someone to murder his wife and less than tw o months before the mur der occurred, was mailed back to the DeCaros and was found in the DeCaros’ bedroom after the murder. DeCaro used the mail to make a claim on that policy early in 1995, after his acquittal on stat e murder charges and his release from incarceration. This constituted the government’s evidence on the use of the mail or facilities in interstate commerce. We consider the arguments of each of the defendants in turn. A.
Basile, while acknowledging that “it can be said that [his] admitted theft of the van ‘caused’ DeCaro to use the mails to make

### -15-

ins urance claims on the van and its contents,” nevertheless argues tha t “these claims . . . w ere not linked by the evidence to the alleged murder contract between the two.” Brief of Basile at 26. We disagree, and now summarize additional relevant evidence. Craig Wells testified that, in late January 1992, Basile told hi m that DeCaro wanted Basile “to steal one of his vehicles and also that he wanted hi m to do a hit” on DeCaro’s wife. Trial Transcript at 1-156

. According to Wells, Basile “thought it was a pac kage deal” and that DeCaro
was go ing to pay Basile “around $15,000.” Id. at 1-156, -157. Susa n Jenkins, who was Basile’s driver the night he stole the van, testified tha t the theft was an “insurance scam” and that, during the course of their tim e together that night, she heard Basile say “that he had been offered $15,00 0 to kill someone’s wif e.” Id. at 2-17, -18. Jeffrey Niehaus, a friend of Basile, said Basile told him that the van theft “was set up through th e
owner and it was insurance” and that Basile referred to stealing the van
as pa rt of a “double job.” Id. at 2-189. Basile also told Niehaus tha t Basile would be receiving “[o]ver $9,000" for stealing the Blazer, which Niehaus thought was an “[a]wfully lot” of money for just stealing a car. Id. at 2-191. Kenneth Robinson, an acquaintance of Basile, testified that Basile said that “he knew someone who had a van that he wanted to get rid of and have his wife disappear at the same time.” Id. at 4-256. Basile’ s friend Dennis Williams testified that, after the murder, Basile tol d Williams “that he hadrecently done an insurance job on a van for [murder victimElizabeth DeCaro’s] husband.” Id. at 4-250. In addition, Basile told his half brother Doug Meyer that “he was do ing an insurance job” when Meyer sa w the cut-up Blazer in the garage he had let Basile borrow an d realized that the veh icle was implicated in the DeCaro murder. Id. at 4- 23. There was no evi dence that Basile received from DeCaro anything more than several hundred dollars before the murder. But there was evidence

### -16-

that DeCaro was not in good financial shape at t he time of the murder, and that he would not have been able to pay Basile $ 15,000 in cash (or $9,000, for tha t matter) without the proceeds from the insurance on Elizabet h DeCaro’s life.

Havin g reviewed the evidence according to the standards discusse d above, we conclude that the insurance transactions involving the DeCar o vehicles and items taken from the DeCaro van andhome provide the required
nexus between the mail or facilities in interstate commerce and the murder

for-hire t o sustain Basile’s conviction. It does not appear, and th e government does not contend, that the insurance proceeds from the property insurance policies were to be used to pay Basile for killing Elizabeth , given that the funds were not sufficient to do so. There was a substantia l lien on the van, and the value of the stolen property and the Blazer was not enough to cover the price of the murder cont ract. As explained below, the evidence nevertheless was sufficient to prove that DeCaro filed th e propertyinsurance claims, at least in part, in order to cover the co

conspi rators’ involvement in the thefts, which themselves occurred as a part of the plot to murder Elizabeth DeCaro--in the words of Basile, “the package deal.”

After Eli zabeth was killed, DeCaro told Elizabeth’s sister that the murderer must have been “casing the joint.” Trial Transcript at 3-51. Th e jury reasonably couldinfer from that testimony that the theft of the van
was staged to create a scapegoat, that is, an unknown assailant who just
a month b efore the murder had “cased” the DeCaro home when stealing th e van. As for the Blazer, the evidence was substa ntial that the vehicle was stolen, at least in part, to be used as Basile’s “getaway” vehicle

### Basile does not “admit” in his brief that he stole the 8 

### Blazer as he did the van, but the evidence presented at trial provides overwhelming proof that he did. Therefore, the Blazer’s role in the murder, and the interstate transactions related to its theft, are relevant to the analysis. DeCaro did not file the claims on the Blazer and the 9 

### property stolen from his home until after his release by state authorities following his acquittal on murder charges, but those transactions could be seen by a reasonable jury as a part of DeCaro’s continuing effort to appear innocent of his wife’s murder.
-17- after he murdered Elizabeth DeCaro in her home. Thus a reasonable jur y 8 could conclude that the thefts of the vehicles were part of the murde r plot, and that the insurance claims were filed, not merely for the sake of coll ecting the insurance money, but to give DeCaro the appearance o f innocence. The evidence of the requisite nexus between the use Basil e

9 caused to be made of the mail or facilities in i nterstate commerce and the murder-for-hire plot, while circumstantial, is s ufficient for a reasonable jury to find the requisite linkage between Basil e, the interstate activity of his co-conspirator, and their contract for the murder of Elizabet h DeCaro.

We hold that the District Court did not abuse its discretion i n denying Basile’s motion for judgment of acquittal on the murder-for-hire charges.

B.
DeCaro, like Basile, acknowledges his use of the mails and faci lities in interstate commerc e but challenges the sufficiency of the government’s proof that such use was in furtherance of the murder-for-hire plot. The analysis above concerning Basile applies with even greater force to DeCaro

. Moreover, DeCaro’s interstate

### -18-

ac tivityconcerning the life insurance policy provides an additiona l interstate connectionto the murder plot. The government has the benefit of the log ical inference that the purchase of the policy on Elizabet h DeCaro’s life was an integral part of DeCaro’s scheme to have her murdered

. Further, the evidence permits the inference that DeCaro, otherwise lacking the ability to pay Basile for his services, intended to pay him when DeCar o collected the $100,000 on the life insurance policy.

We hold that the District Court did not err in denying DeCaro’ s motion for judgment of acquittal, as a jury coul d find beyond a reasonable doubt the necessary connection between his use of the mail or facilities in interstate commerce and the murder-for-hire scheme.

V.
The judgment of the District Court is affirmed.

A true copy.

Attest:

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