United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2207

___________

United States of America, *

*

 Appellee, *

*

v. *

Abdul Wahid Al-Muqsit, also known *

as Zachary Aaron Roan, also known *

as Zach Roan, *

*

Appellant. *

 ___________

Appeals from the United States

No. 98-2839 District Court for the

___________ District of Minnesota.

United States of America, *

*

 Appellee, *

*

v. *

*

Benjamin Matthew Logan, also known *

as Matt Logan, *

*

Appellant. *

___________

No. 98-2980

___________
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United States of America, *

*

 Appellee, *

*

v. *

*

Dennis Kermit Michels, *

*

Appellant. *

___________

No. 98-3787

___________

United States of America, *

*

 Appellee, *

*

v. *

*

Karl Michael Kimpton, *

*

Appellant. *

___________

Submitted: May 11, 1999

Filed: September 9, 1999

___________

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

___________

HEANEY, Circuit Judge.
1At the time of the crimes and during trial, Al-Muqsit was known by his former

name, Zachary Roan. Thus, he will be referred to as "Roan" in the text of this opinion.

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The four defendants in this consolidated appeal, Abdul Wahid Al-Muqsit, also

known as Zachary Aaron Roan,1 Benjamin Matthew Logan, Karl Kimpton, and Dennis

Kermit Michels, were convicted of various counts involving a conspiracy to traffic

illegal guns from Minnesota to Chicago. Roan and Logan appeal from multi-count

convictions and sentences for conspiracy, robbery, use of a firearm in a crime of

violence, selling firearms without a license, false statements in gun transaction records,

and interstate transportation of stolen firearms. Kimpton and Michels, federallylicensed firearm dealers, appeal their convictions and sentences for conspiracy and

false statements on gun transaction records. For the reasons stated below, we affirm

the convictions and sentences of all defendants with the exception of Logan's

convictions and resulting sentence for robbery and use of a firearm in a crime of

violence.

Facts

This case arose out of a conspiracy to traffic illegally in firearms by obtaining

firearms cheaply in Minnesota and reselling them at a substantial profit on the streets

of Chicago. The conspiracy began in late 1991 when Roan and Chicago native Stacee

Hardaway began purchasing firearms for resale in Chicago. Approximately 126

firearms were obtained from licensed dealers, including 109 firearms which came from

either Kimpton, who sold firearms in Wells, Minnesota, or Michels, who sold firearms

in North Mankato, Minnesota. Firearms were also obtained through a home burglary

and the robbery of Lloyd's Gun Shop in Minneapolis. Hardaway, Roan, and Logan

transported the firearms to Chicago.

The purchase of such a large number of firearms in a short period of time from

federally-licensed dealers without detection by the Bureau of Alcohol, Tobacco and
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Firearms (ATF) required falsification of ATF forms. For each gun purchase the dealer

was required to complete ATF form 4473, which recorded the name, address, and other

information for the person who received the firearm. Federal law in 1991 did not limit

the total number of firearm purchases any individual could make or the frequency of

those purchases. However, it did require licensed gun dealers to notify ATF of any

person who purchased more than one handgun in a five-day period. Kimpton and

Michels conspired with Hardaway and Roan to evade this requirement through the use

of "straw purchasers," purchasers who filled out the forms for guns bought by and

transferred to Hardaway and Roan.

The conspirators' desire for more firearms to sell in Chicago eventually led to a

home burglary in Mankato and the armed robbery of Lloyd's Gun Shop in Minneapolis.

In the latter, two clerks were murdered. On the evening of June 23, 1992, clerks Tim

Foslien and Brian Maas were fatally shot during a robbery in which approximately

ninety guns, including semi-automatic handguns, revolvers, rifles, shotguns, and stun

guns were stolen from the store . 

According to the testimony of Betty Cole Hardaway, Roan and Logan arrived

at the Mankato apartment she shared with Darren Hardaway on the evening of

June 23rd. According to Cole, Logan announced that he and Roan had gone to the gun

store, that there had been two men there, and that he and Roan had each shot one

person in the head. Logan told Cole and Hardaway that the man he had shot in the

head had first been wounded in the side. Logan then showed Cole and Hardaway the

stolen guns. Around midnight that night, Cole and Hardaway drove to Chicago,

followed by Roan and Logan.

On June 25, 1992, three Chicago police officers observed Hardaway get out of

a Mercury Cougar near a public telephone on Chicago's West Side while wearing a
2Cole stated that Roan and Logan drove a beige Mercury Cougar from Mankato

to Chicago.

3Miranda v. Arizona, 384 U.S. 436 (1966).

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gun.2 Roan was in the passenger seat and Logan was in the driver's seat. Police

stopped the men, finding a loaded 9mm Glock handgun on Roan and a loaded .40

caliber semi-automatic Glock handgun on Logan. The officers arrested the three men

for misdemeanor handgun possession. Upon searching the car, police found a number

of additional guns, gun shop receipts, and a key from the Presidential Inn, room 123.

When police searched the hotel room the next day, they recovered several items

including a receipt from Karl's Gun Shop bearing Roan's name, undeveloped photo

negatives that later revealed photographs of Roan posing with a gun pointed at the

camera, a stun gun, and a chrome Davis Industries P-380 handgun. Further

investigation revealed that three of the shell casings recovered from Lloyd's–including

those matching the bullet that killed Foslien, and two of the bullets fired into Maas–had

been fired from the chrome Davis Industries P-380 gun seized from the hotel room.

Maas was killed by a bullet fired to the back of the head from the gun Logan was

carrying when the two men entered the store.

All three men were advised of their Miranda3

 rights and taken into custody.

Because of the number of guns seized, Chicago police contacted the ATF. After

checking the guns' serial numbers on a national computer system, Chicago police

learned that some of the guns had been stolen during the double homicide in

Minneapolis, and contacted the Minneapolis Police Department. Officers Morrill and

DeConcini of the Minneapolis Police Department flew to Chicago the morning of

June 26, 1992. While being questioned, Darren Hardaway directed officers to Kelvin

McCollum's home in Chicago where Roan allegedly slept the night of June 24, 1992.

The police recovered another eighteen guns, including three from the Lloyd's Gun Shop
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robbery, a grinder to remove serial numbers from guns, drug paraphernalia, and

$12,000 in cash.

An ATF agent first questioned Roan on June 25, 1992, before ATF learned of

the connection with the Minneapolis murders. Officer DeConcini interviewed Roan at

approximately 2:30 p.m. on June 26, 1992. At that time, Roan declined to discuss the

matter. DeConcini interviewed Roan again shortly after midnight on June 27, 1992,

and Roan again declined to discuss the matter. Prior to each interview, DeConcini read

Roan his Miranda rights. Between 12:15 and 12:30 a.m. on June 27, 1992, DeConcini

and a Chicago police officer decided to confront Roan with the evidence in the case.

As Roan was escorted from his interview room into a large roll-call room where the

guns and other evidence seized from McCollum's home were displayed, an officer

again read Roan his Miranda rights. Roan stated "Okay. I did it." He then proceeded

to explain his role in the murders.

Roan told police that he and Logan went to the gun store in Minneapolis the day

before the murders, intending to kill the employees and steal weapons. When they

arrived, three employees were present. He believed all three were armed and thought

he didn't have enough bullets to "do" everyone in the store. He and Logan returned the

next day just before the store closed at 7:00 p.m. After the few customers left, Roan

walked toward the cash register, pulled out his Davis Industries .380 handgun and shot

one of the clerks (Foslien) in the forehead from about seven feet. He turned and shot

the other clerk (Maas) twice. He said he then heard another shot. He and Logan

emptied a cardboard box, collected weapons, and put them in the box. They returned

to Mankato, switched cars, and drove to Chicago.

Roan explained that prior to the murders he had bought guns and sold them on

the street for profit. Roan told police that after a Mankato gun shop owner became

nervous about selling him so many guns and refused to sell to him, he had to commit

the murders in order to obtain additional guns. Roan identified the Davis Industries
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.380 semi-automatic handgun present in the roll-call room as the gun he used during the

robbery and homicide. He also identified the cardboard box used to load the guns.

Police then summoned a court reporter who took a formal statement from Roan at

approximately 1:20 a.m. 

Police also began questioning Logan after he was picked up. Logan initially

denied knowing anything about the double homicide in Minneapolis and claimed that

he and Roan had purchased the guns in Milwaukee. Later Logan was questioned by

Morrill for approximately thirty to forty-five minutes without anyone else present.

Logan spoke voluntarily with Morrill, but the conversation was not tape recorded or

transcribed. 

Logan subsequently gave a recorded statement in which he recounted that after

he and Roan had been in the gun shop approximately five minutes, Roan pulled out his

gun, shot one of the clerks, and then turned and fired two to three times at the other

clerk. Next, Logan claimed that he took his gun out of his pocket and placed it on the

counter before going to check the pulse of the clerk Roan had shot in the head. While

checking the clerk's pulse, he heard another shot. Roan then began yelling at him to

help gather the guns and take them to the car, which Logan did. Logan stated that

when he saw his own gun laying on the floor, he picked it up and returned it to his

pocket. Evidence later showed that the second clerk had been shot in the head with

Logan's gun. At trial, Logan maintained that he had had no knowledge that Roan

intended to rob the gun store, and thought that Roan intended to buy a gun at Lloyd's,

since Roan often purchased guns. Logan testified that after the murders he did what

Roan told him to because he was afraid of Roan.

Logan and Roan were tried separately in Minnesota state court on first-degree

murder charges. Both were convicted and sentenced to consecutive life terms. Roan's

conviction was upheld on appeal. See State v. Roan, 532 N.W.2d 563 (Minn. 1995).

The Minnesota Supreme Court overturned Logan's conviction, see State v. Logan, 535
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N.W.2d 320 (Minn. 1995), and he was acquitted on retrial. Roan refused to testify at

the second trial and was found in contempt. Following the completion of the state court

trials, federal charges were filed against Hardaway, Roan, Logan, Kimpton, Michels,

and four of the straw purchasers. Roan, Logan, Kimpton, and Michels were tried

together and convicted. The rest of the defendants, including Hardaway, who testified

at trial, pled guilty.

Discussion

I. Individual Claims

A. Michels and Kimpton

Relying on the plain language of the relevant statute, Michels and Kimpton argue

that because they are federally-licensed firearms dealers, their record-keeping offenses

are misdemeanors under 18 U.S.C. § 924(a)(3) rather than felonies under 18 U.S.C. §

924(a)(1)(A). We review this question of statutory interpretation de novo. See United

States v. Williams, 136 F.3d 547, 550 (8th Cir. 1997).

Count 1 of the indictment alleged that all defendants knowingly and willfully

conspired to violate 18 U.S.C. § 924(a)(1)(A). Section 924(a)(1)(A) and (D) state in

relevant part:

(a)(1) Except as otherwise provided in this subsection, . . . whoever–

(A) knowingly makes any false statement or representation with

respect to the information required by this chapter to be kept in the

records of a person licensed under this chapter or in applying for any

license or exemption or relief from disability under the provisions of this

chapter;

. . . .

(D) willfully violates any other provision of this chapter,
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shall be fined under this title, imprisoned not more than five years, or

both.

Id. Michels and Kimpton argue that the statutory scheme of § 924 requires that they

be charged under § 924(a)(3) as follows:

(3) Any licensed dealer, licensed importer, licensed manufacturer, or

licensed collector who knowingly–

(A) makes any false statement or representation with respect to the

information required by the provisions of this chapter to be kept in the

records of a person licensed under this chapter . . .

. . . .

shall be fined under this title, imprisoned not more than one year, or both.

Id. They argue that in implementing this provision, Congress intended to limit the

criminal liability of federally-licensed gun dealers for false statements on ATF forms

to those violations committed knowingly. They reason that because the 18 U.S.C. §

922(m) count S a willful violation of which would qualify for felony punishment under

§ 924(a)(1)(D) S was dismissed prior to trial, only § 924(a)(1)(A) remains, which by

its terms applies only to a knowing violation. As an initial matter, we reject the

government's contention that the use of the word "willfully" in the conspiracy language

of Count I transforms the mens rea of the substantive offense of § 924(a)(1)(A) from

knowingly to willfully in order to incorporate § 924(a)(1)(D). Section 924(a)(1)(A)

was the only remaining count against Michels and Kimpton; thus, they cannot be

charged with willfully violating that statute.

We do not, however, agree with Michels and Kimpton that they could not

properly be charged under § 924(a)(1)(A). There is simply nothing in the language or

legislative history of the statute or legislative history to indicate Congress intended to

do anything more than allow for the option of misdemeanor prosecution for licensed

dealers who make false statements on ATF forms, while leaving intact the felony

prosecution structure for those such as Michels and Kimpton whose flagrant and
4

In the words of a sponsor, this Senate floor amendment was intended to ensure

that the dealer would not be "subjected to harsh felony penalties for technical violations

of the rigid record-keeping standards" of the Act. See 131 Cong. Rec. 18,187 (1985)

(statement of Sen. Hatch).

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repeated actions in accepting false ATF forms from straw purchasers and backdating

ATF forms to avoid notification requirements warrants felony punishment.

The legislative history of the Firearm Owners Protection Act of 1986, which

added the misdemeanor provisions of § 924(a)(3), suggests these amendments were

intended "to ensure that law-abiding citizens would not be subject to severe criminal

penalties for unintentional missteps." United States v. Obiechie, 38 F.3d 309, 312 (7th

Cir. 1994). Although not a model of clarity, we believe the two provisions of § 924

reflect a legislative compromise–the sponsors of § 924(a)(3) wanted to ensure that

technical or unimportant violations would not be punished too harshly4 while allowing

for felony prosecution of more serious offenses. This sentiment is reflected in the

Congressional Record:

The aim of the Firearm Owners Protection Act is to redirect law

enforcement toward the kind of transaction most likely to be a factor in

violent firearms crime. In other words, we have to stop going after the

guy who transposes a number in a zip code, and go after the dealer who

is knowingly selling stolen guns, or knowingly selling to prohibited

persons.

132 Cong. Rec. 9603 (1986) (remarks of Sen. McClure). Without the option of

charging dealers under the felony provisions of § 924, it would be impossible for law

enforcement to "go after" the first link in a chain which results in a plentiful supply of

firearms for use in violent crime. We do not believe that Congress intended to insulate

from punishment dealers such as Michels and Kimpton who knowingly participate in

an illegal gun trafficking scheme that puts hundreds of firearms in the hands of Chicago

gang members. 
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B. Zachary Roan

Roan makes three additional arguments on appeal. First, he argues that officers

violated his Miranda rights by approaching him after he terminated the interrogation,

and that the district court therefore erred in denying his motion to suppress the

confession he made to officers in Chicago. Roan also contends that he was deprived

of a fair trial when counsel for codefendant Logan improperly commented on Roan's

failure to take the stand at trial. Finally, Roan asserts sentencing errors.

 Roan initially answered questions during the first interview, but according to the

questioning officer, when the interview "got to questions about the crime itself . . . he

told me that he wasn't ready to talk about that at that time." The same officer

approached Roan ten hours later and Roan again talked with him generally at first, but

when the subject of the murders was again raised, Roan stated, "I don't think right

now." Approximately ten minutes later several officers brought Roan to the evidence

room where he then confessed.

Roan argues that his statements invoked his right to remain silent and that the

subsequent questioning in the evidence room violated this right. Roan cites Michigan

v. Mosley, 423 U.S. 96 (1975), for the proposition that once he asserted his right to

silence, questioning could not resume, particularly not in the next ten minutes. In

Mosley the Court held that once the suspect asserts his right to remain silent, it must

be "'scrupulously honored.'" See id. at 103 (quoting Miranda v. Arizona, 384 U.S. 436,

479 (1966)). The Court ultimately found that the suspect in Mosley could be

approached again for questioning about a different crime after having asserted his right

to remain silent in an earlier interview regarding the crime about which he was taken

in for questioning." See id. at 104-06. Roan argues that this is the only situation in

which officers do not violate Miranda when they resume questioning after a suspect has

ended an interrogation. The Mosley case does not support this conclusion, however,

because it fails to discuss under what circumstances questioning may resume about the
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same crime. It simply states that the answer to the question of when interrogation may

resume is neither "never" nor "immediately." See id. at 101-02. Instead, the courts

must examine whether the assertion of the right was scrupulously honored.

The district court found that Roan's declaration did not "unequivocally express

an interest in having his questioning end." We review this determination for clear error.

See United States v. Cody, 114 F.3d 772, 775 (8th Cir. 1997). We agree that the right

to remain silent was never evoked given the nature of Roan's statements. This case is

analogous to United States v. Thompson, 866 F.2d 268 (8th Cir. 1989), in which the

suspect indicated that he wanted to "sleep on it" before he talked with police and that

he would "wait a little while" before he was interviewed. Id. at 270. He was moved

shortly thereafter and interviewed approximately thirty minutes after he had made the

request to wait. He signed a waiver of his Miranda rights and confessed This court

held that Thompson's statements were not sufficient to invoke his right to silence. See

id. at 271. Roan's statements are similar and require the same conclusion.

Roan next argues that the district court abused its discretion in refusing to grant

a mistrial after counsel for Logan inappropriately commented during closing argument

on Roan's failure to take the stand in his own defense. Specifically, Logan's counsel

pointed out to the jury during his closing statement that Logan had been questioned and

requestioned about the offense for six years, whereas all the jury had from Roan was

a piece of paper with his post-arrest statement implicating Logan. Counsel continued:

"[J]ust how in the hell do I cross examine this statement? How do I cross examine this

piece of paper and find out what's true and what's false?" (Tr. at 2402-03.) Later in

closing counsel stated, "I can't ask [Roan] why he said the things he said. I can't cross

examine Mr. Roan. Wouldn't I like to be able to." (Tr. at 2425.) 

The Fifth Amendment protects Roan's choice to remain silent and not testify in

his own defense. See United States v. Harris, 956 F.2d 177, 181 (8th Cir. 1992). And

a comment by a codefendant's counsel regarding a defendant's failure to testify violates
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the defendant's right to a fair trial, if not the defendant's Fifth Amendment right. See

United States v. Anderson, 879 F.2d 369, 379 n.4 (8th Cir. 1989) (citing Hayes v.

United States, 329 F.2d 209, 222 (8th Cir. 1964)). Roan looks to de Luna v. United

States, 308 F.2d 140 (5th Cir. 1962), in support of his argument that the comments of

Logan's counsel warrant reversal. In de Luna, one codefendant, Gomez, testified and

the other, de Luna, did not. Gomez claimed that he had been an innocent victim of

circumstance when de Luna–a passenger in Gomez's car–saw the police coming, tossed

Gomez a package of narcotics, and told him to toss it out the window. De Luna did not

testify, but his lawyer theorized he had never tossed the package to Gomez. In

response, counsel for Gomez argued to the jury, "Well, at least one man was honest

enough and had courage enough to take the stand and subject himself to cross

examination and tell you the whole story," and "You haven't heard a word from this

man (de Luna)." Id. at 142. The de Luna court held that the improper comments

warranted reversal, enumerating several factors that were critical to its decision,

including "the head-on collision between the two defendants, the repetition of the

comments, and the extended colloquy over the comments between the trial judge and

the lawyers." Id. at 154.

In this case, the government concedes and the district court agreed that the

remark was improper. The government argues, however, that Roan was not denied his

right to a fair trial since the comments only referred to Roan's refusal to testify in an

attempt to undermine the reliability of his confession, which implicated Logan, and did

not imply that Roan was guilty. The government further argues that the comment could

not have affected the jury's verdict, given the overwhelming evidence of Roan's guilt

and lack of an articulable theory of innocence. We agree that the facts of this case

differ significantly from de Luna. The improper comments here were not as

inflammatory or suggestive of guilt as the comments in de Luna or repeated and

emphasized in the same manner. Furthermore, we agree with the reasons advanced by

the government supporting the conclusion that the statements did not affect the verdict.

See United States v. Patterson, 819 F.2d 1495, 1506 (9th Cir. 1987).
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Finally, Roan challenges his lengthy sentence, which resulted from the

application of United States Sentencing Guidelines Manual § 5G1.2(d) (1998). Section

5G1.2(d) provides:

If the sentence imposed on the count carrying the highest statutory

maximum is less than the total punishment, then the sentence imposed on

one or more of the other counts shall run consecutively, but only to the

extent necessary to produce a combined sentence equal to the total

punishment. In all other respects, sentences on all counts shall run

concurrently, except to the extent otherwise required by law.

Thus, although the statutory maximum penalty for robbery is twenty years, Roan was

sentenced on each count concurrently until he arrived at the life sentence provided for

under U.S.S.G. § 2B3.1(c)(1), which states: "If a victim was killed under

circumstances that would constitute murder under 18 U.S.C. §1111 [defining murder

in the perpetration of robbery as first degree murder] . . . apply §2A1.1." Section

2A1.1 assigns the offense level for first-degree murder at 43. Roan does not challenge

the application of § 5G1.2(d) to his sentence; he rather claims that the provision is

unconstitutional. Numerous circuits have upheld the constitutionality of this provision

against due process challenges. Our court has also upheld sentences applying the

provision. See United States v. Rodgers, 122 F.3d 1129, 1131 n.2, 1132 (8th Cir.

1997). We see no error in this application of the guidelines and affirm.

C. Benjamin Logan

Logan presents four individual grounds for reversal. Logan asserts that the

district court erred in failing to dismiss his indictment for pre-accusatory delay or on

double jeopardy grounds. Logan also contends that the district court abused its

discretion in failing to give a “missing witness” instruction. Finally, Logan argues that

the life sentence he received for a robbery conviction violates due process.
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Logan first contends that the district court erred in failing to dismiss the

indictment for preaccusatory delay. While statutes of limitations provide “'the primary

guarantee against bringing overly stale criminal charges,'” United States v. Marion, 404

U.S. 307, 322 (1971) (quoting United States v. Ewell, 383 U.S. 116, 122 (1966)),

constitutional due process has a “limited role to play in protecting against oppressive

delay,” United States v. Lovasco, 431 U.S. 783, 789 (1977). Dismissal of an

indictment due to preindictment delay is warranted only where a defendant can

establish “'that the delay was unreasonable and that it actually and substantially

prejudiced the presentation of [the] defense.'” Bennett v. Lockhart, 39 F.3d 848, 851

(8th Cir. 1994) (quoting United States v. Miller, 20 F.3d 926, 931 (8th Cir. 1994)).

Only if actual prejudice is established will the court inquire into the reasons for the

delay and balance them against the demonstrated prejudice. See Miller, 20 F.3d at 931.

To prove actual prejudice, Logan must specifically identify witnesses or documents lost

during the delay properly attributable to the government, relate the substance of the

testimony which would be offered by the missing witnesses or the information

contained in lost documents in sufficient detail to permit a court to assess accurately

whether the information was material to his defense, and show that the missing

testimony or other evidence is not available from alternate sources. See United States

v. Bartlett, 794 F.2d 1285, 1289-90 (8th Cir.), cert. denied, 479 U.S. 934 (1986). We

review a district court’s determination of actual prejudice on a clearly erroneous

standard. See id. at 1291 n.7.

The evidence presented by Logan falls far short of that necessary to establish

actual prejudice. The only prejudice alleged by Logan was diminishment of witness

memory due to the loss of witnesses or passage of time. However, even if such

diminishment could be shown to be material, there were ample alternate sources for this

evidence given that Logan had access to the records from three earlier state court trials

concerning the events of the robbery. Because these records remained available to

Logan, he cannot hope to establish actual prejudice. See Bartlett, 794 F.2d at 1290-91;

United States v. Mmahat, 106 F.3d 89, 94-95 (5th Cir. 1997). Accordingly, the district
-16-

court did not err in denying Logan's motion to dismiss the indictment for preaccusatory

delay.

Logan next claims that the district court erred in denying his motion to dismiss

his indictment on double jeopardy grounds. Specifically, Logan claims that the federal

gun-trafficking charges were a “sham” designed to vindicate Minnesota’s interest in

obtaining a conviction. As a general matter, of course, prosecution by multiple

sovereigns poses no constitutional difficulty. See Heath v. Alabama, 474 U.S. 82, 88

(1985) (“When a defendant in a single act violates the ‘peace and dignity’ of two

sovereigns by breaking the laws of each, he has committed two distinct ‘offences.’"

(quoting United States v. Lanza, 260 U.S. 377, 382 (1922)). However, where the

federal prosecution was merely a sham for state prosecution because it either vindicates

interests that the state could not itself advance or is suggestive of collusion on the part

of state and federal prosecutors, the dual sovereignty doctrine does not apply. See

United States v. Williams, 104 F.3d 213, 216 (8th Cir. 1997). 

Logan asserts that his federal prosecution is merely a sham intended to rectify

the state’s failure to obtain a conviction, because despite an ATF investigation and

inventory in connection with the robbery, the United States did not indict Logan until

after he was acquitted of felony murder in Minnesota state court. This argument

ignores that the obvious interest of the federal government in prosecuting interstate

trafficking of firearms exists entirely independently of Minnesota’s interest in obtaining

a conviction for felony murder. As to the alleged collusion between federal and state

officials, it is well established that “cooperation between state and federal authorities

does not amount to unlawful collusion.” Williams, 104 F.3d at 216. Although we have

recognized that at some point coordination between independent sovereigns may

support an allegation of sham prosecution, this case presents no occasion to demarcate

that line.
5

In Lombard, there was no stated statutory maximum for the firearms offense,

so the cross-reference to the murder guideline displaced the lower guidelines range that

would have otherwise applied. See 72 F.3d at 178.

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Logan’s third individual claim concerns his contention that the district court

abused its discretion in failing to give a missing witness instruction concerning a retired

police officer whose testimony Logan asserts would have “elucidate[d]” events. Upon

carefully reviewing the facts presented by Logan in light of the law of this circuit, we

find no merit to Logan’s third individual claim.

Logan’s fourth and final individual claim asserts that his sentence of 540 months

violates due process. Logan was convicted of robbery, conspiracy, gun-trafficking, and

use of a firearm in a crime of violence. Following applicable sentencing guidelines

provisions, the district court correctly established Logan’s total offense level at 43.

The recommended guidelines sentence of life imprisonment was adjusted to comply

with the statutory maximum sentences set for each of Logan’s offenses, yielding a total

sentence of 540 months. Logan does not object to the district court’s calculation of his

sentence, but rather argues that this case falls into the category the Supreme Court had

in mind when it observed that “the preponderance standard th[is] Court approved for

garden variety sentencing determinations may fail to comport with due process where

. . . a sentencing enhancement factor becomes ‘a tail which wags the dog of the

substantive offense.’” United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991)

(quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)). We disagree. 

In United States v. Lombard, 72 F.3d 170 (1st Cir. 1995), the First Circuit

addressed the situation referred to in McMillan. The defendant in Lombard had been

convicted in federal court of possession of a firearm under 18 U.S.C. § 924(e), but had

earlier been acquitted in state court of a murder charge stemming from the same

underlying events. The district court in that case applied the murder guideline, resulting

in a life sentence.5 In calling into question the constitutional propriety of adherence to
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the sentencing guidelines in such a circumstance, the First Circuit panel emphasized

that Lombard “received a life sentence based on the federal court’s finding that it was

more likely than not that Lombard had committed the murders of which he had been

acquitted.” Id. at 171. That is not the case here. Logan was convicted by a federal

jury of armed robbery. United States Sentencing Guidelines Manual § 2B3.1(c)(1)

(1998) provides that “if a victim was killed under circumstances that would constitute

murder under 18 U.S.C. § 1111 had such a killing taken place within the territorial or

maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder)." In

turn, 18 U.S.C. § 1111(a) defines “murder” to include felony murder. In this case,

there is no question but that Logan could have been convicted of felony murder. Thus,

the decision in Lombard is easily distinguishable. Logan’s other arguments concerning

the constitutionality of his sentence are without merit. Accordingly, each of Logan’s

individual claims is rejected.

II. Denial of Motions for Severance

Each of the defendants argues that the district court abused its discretion in

denying his motion for severance. See United States v. Jackson, 64 F.3d 1213, 1217

(8th Cir. 1995) (district court's decision to deny severance is reviewed for abuse of

discretion). The district court may grant a severance where a defendant shows that he

is prejudiced by a joint trial. See id. (abuse of discretion standard requires showing of

clear prejudice); see also Fed. R. Crim. P. 14. Roan complains that he was prejudiced

by Logan's attempts to place the entire blame for the robbery on him. Kimpton and

Michels assert that they were unable to receive a fair trial because their crimes were

tried along with a violent robbery and double homicide. Logan claims that his defense

was irreconcilable with that of Roan and that he was prejudiced by his inability to

present evidence of Roan's gang affiliation, both evidentiary matters which resulted

from being tried with Roan. Logan also asserts that the admission of Roan's post-arrest

statements in redacted form violated his Confrontation Clause rights under the Sixth

Amendment. With the exception of Logan's Confrontation Clause claim, we find that
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the denial of severance under any of these circumstances did not result in "severe or

compelling prejudice" to the accused necessitating reversal. See United States v.

Koskela, 86 F.3d 122, 126 (8th Cir. 1996); see also United States v. Lane, 474 U.S.

438, 449 (1986) (reversal is required only if joinder had substantial and injurious effect

or influence in determining jury's verdict).

Federal Rule of Criminal Procedure 8(b) provides for the joinder of defendants

alleged to have participated in the same criminal activity, and "[t]here is a preference

in the federal system for joint trials of defendants who are indicted together." Zafiro

v. United States, 506 U.S. 534, 537 (1993). This court has stated that "'rarely, if ever,

will it be improper for co-conspirators to be tried together.'" United States v. Patterson,

140 F.3d 767, 774 (8th Cir. 1998) (quoting United States v. Wint, 974 F.2d 961, 965

(8th Cir. 1992). In order to prevail, a defendant must establish "more than the mere

fact that his chances for acquittal would have been better had he been tried separately.

He must affirmatively demonstrate that the joint trial prejudiced his right to a fair trial."

United States v. O'Connell, 841 F.2d 1408, 1432 (8th Cir.1988). 

Kimpton and Michels make the former type of argument–that the nature of the

evidence presented by or against their co-conspirators made the jury more likely to

convict. They point to no more specific prejudice suffered, and thus their claims must

be rejected. Michels' and Kimpton's further argument that their "minor" role in the

conspiracy necessitated severance similarly fails because limited involvement in a

conspiracy does not warrant severance. See United States v. Pecina, 956 F.2d 186,

188 (8th Cir. 1992). 

Roan fails to point to denial of a specific trial right or present a claim of severe

or compelling prejudice resulting from Logan's efforts to blame him entirely for the

robbery, and his claim therefore fails.
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Logan makes three specific arguments of prejudice suffered from the district

court's failure to order a severance. Logan first asserts that he was entitled to severance

because his defense that he was unaware that Roan intended to commit the robbery and

acted under duress after the shootings was irreconcilable with Roan's defense which

involved no articulable theory. He recognizes that simply antagonistic defenses do not

entitle codefendants to severance under Zafiro, but rather the defendant must show

legally cognizable prejudice. See 506 U.S. at 541. Logan has shown no such prejudice

resulting from conflict between his and Roan's defenses, and we therefore reject this

claim.

Similarly, Logan's second claim that he was prejudiced by the district court's

refusal to allow him to testify as to Roan's gang affiliation in order to support his duress

claim fails because, contrary to Zafiro, Logan has failed to point to any specific trial

right that was compromised. See 506 U.S. at 539. Moreover, even if Logan could

articulate a specific trial right that was denied, he has failed to show any resulting

prejudice, considering that he testified at length that he witnessed Roan murder two

people and that Roan threatened him. This was certainly ample evidence for the jury

to find duress if they were so inclined.

A more difficult question is presented by Logan's third claim that his rights under

the Confrontation Clause were violated and he suffered prejudice when Roan's postarrest statements implicating him were presented to the jury in a manner that violated

Bruton v. United States, 391 U.S. 123 (1968). Bruton held that it is unduly prejudicial

in a joint trial to admit a codefendant's post-arrest statement if the statement directly

implicates a codefendant and that such an admission violates the Sixth Amendment

confrontation right of the codefendant. See 391 U.S. at 126.

 

At trial, detective Walsh, one of the detectives who spoke with Roan after his

arrest, redacted Logan's name from the confession by testifying that Roan told him he

had committed the robbery with "another individual." (Tr. at 1366-67). Logan claims
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that this testimony invited speculation that the prosecution was withholding the name

and led the jury to infer that the name was his. Logan asserts that since the government

had notice that his defense would be coercion, Roan's redacted confession compelled

the conclusion that Logan was the person referred to who, according to Roan, planned

and participated in the robbery and fired the shot that killed Maas. Since Roan did not

take the stand, Logan was unable to cross-examine him regarding this statement. 

In Richardson v. Marsh, 481 U.S. 200 (1987), 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 . . . the confession is redacted to

eliminate not only the defendant's name, but any reference to his or her existence."

Id. at 211 (emphasis added). The Court specifically noted that it expressed no opinion

on the admissibility of a confession in which the defendant's name has been replaced

with a symbol or neutral pronoun. Thus, the government's reliance on Richardson is

obviously misplaced. In Richardson, the Court approved a nontestifying codefendant's

admission where the trial court had removed all indication that another person was

present in the car when the robbery was planned. See id. at 203. In the instant case,

unlike in Richardson, Roan's statement made reference to the fact that "another

individual" had planned the robbery with him, thereby alerting the jury to the existence

of a codefendant.

Subsequently in Gray v. Maryland, 118 S. Ct. 1151 (1998), the Court held that

redactions, such as an obvious blank or the use of the word "delete," which replace the

name in such a way as to notify the jury that the name has been deleted violate the

confrontation clause. See id. at 1155. However, so long as the redacted confession or

admission does not facially incriminate or lead the jury directly to a nontestifying

declarant's codefendant, this court has consistently upheld the admission of evidence.

Recently, for example, in United States v. Edwards, 159 F.3d 1117 (8th Cir. 1998), we

concluded that the district court's decision to admit the statements of a nontestifying

defendant, redacted as to codefendants by the use of "we" and "they" in reference to
6This claim is quite similar to that of the defendant in Richardson, who admitted

that she had been present at the robbery but claimed that she did not know that the

codefendants were armed and intended to rob or harm the victims when the three of

them went to their house. One nontestifying codefendant confessed that he and the

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a large cast of characters from a certain neighborhood, and accompanied by appropriate

limiting instructions, was consistent with this court's decisions and with Gray, which

approved the use of a phrase such as "Me and a few other guys." See id. at 1125-26

(quoting Gray, 118 S. Ct. at 1157); see also United States v. Jones, 101 F.3d 1263,

1270-71 & n.5 (8th Cir. 1996) (use of "we" and "they"); United States v. Garcia, 836

F.2d 385, 390-91 (8th Cir. 1987) ("someone"). However, in United States v. Long,

900 F.2d 1270 (8th Cir.1990), we held that a codefendant's statement to an FBI agent

replacing the defendant's name with "someone" was improperly admitted under Bruton

because the codefendant's cross-examination of the agent "led the jury straight to the

conclusion that 'someone' referred to [the defendant]." Id. at 1279-80.

The government further argues that Roan's confession is admissible because, like

that of the nontestifying codefendant in Richardson, "the [redacted] confession was not

incriminating on its face, and became so only when linked with evidence introduced

later at trial (the defendant's own testimony)." 481 U.S. at 208. We are not persuaded.

This statement can only be read in the context of the facts and holding of Richardson,

which require the redaction of all references to the existence of the defendant.

The facts in this case are quite unlike the facts in Gray and many of our own

cases dealing with Bruton violations where the defendant simply claimed that he was

not present when the crime was committed and/or objected to the use of a very general

reference to other persons such as "we" or "they." Instead, testifying in his own

defense, Logan's claim was that he was unaware of Roan's plan to rob Lloyd's Gun

Shop, but rather thought that Roan intended to purchase a gun as he had done many

times in the past.6 Thus, Roan's redacted statement that he had planned the robbery
other nontestifying codefendant were the two who had discussed the robbery and the

probable need to kill the victims on the way to their house. The testifying codefendant

admitted that she had been in the car with the two, but claimed that she had been

unable to hear the conversation because the radio was playing loudly. The admitted

confession made no reference to the fact that the defendant had even been present in

the car.

7The analysis found in Gray and in our cases such as Garcia and Long, approving

and disapproving the use of the neutral pronoun "someone" is not helpful in this

situation because it focuses on whether the redaction invites speculation on the part of

the jury as to whether the name has been omitted and asks them to fill in the blank.

Here, the issue was not filling in the blank, but the substance of the statement that the

robbery had been planned with the individual.

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with "another individual" cannot be considered a generalized reference, but rather a

much more specific and direct reference serving as a damaging piece of evidence going

directly to the heart of Logan's defense.7 The nature of this statement highlights the

importance of Richardson's requirement that all references to the existence of the

defendant be eliminated. In Richardson, the defendant's own testimony simply placed

herself in the car where the conversation took place. The admitted statement of her

nontestifying codefendant in no way touched on that codefendant's opinion of whether

she had heard the conversation, leading to only an inferential connection. In this case,

the specific nature of Roan's statement makes the connection less inferential and more

like the specific evidence the Richardson Court referred to as "more vivid than

inferential incrimination, and hence more difficult to thrust out of mind." 481 U.S. at

208. Thus, the admission of Roan's statement cannot be said to fit within the narrow

exception created by Bruton and its progeny.

Since the trial court did not eliminate this reference, Logan had a constitutional

right to confront this statement through cross-examination to try to show that in fact,

as Logan claimed, he had only provided Roan with the ride to Minneapolis to buy a gun

that he requested the day of the robbery. The replacement of Logan's name with the
-24-

phrase "another individual" was thus entirely useless in protecting Logan's rights under

the Confrontation Clause, and we find that those rights were infringed upon in violation

of Bruton.

Our conclusion that the admission of Roan's post-arrest statement violated

Logan's constitutional rights under the confrontation clause does not end our analysis.

Bruton errors are subject to constitutional harmless-error analysis. See Garcia, 836

F.2d at 391. Evidentiary rule violations affecting a defendant's constitutional rights are

analyzed under Chapman v. California, 386 U.S. 18 (1967). See United States v.

Williams, No. 98-3422, 1999 WL 410110, at *6 (8th Cir. June 22, 1999). If this

alleged error was harmless beyond a reasonable doubt, the conviction should be

affirmed irrespective of whether the district court committed error in admitting the

testimony. Id. In other words, our task is to "determine whether the properly admitted

evidence of guilt is so overwhelming, and the prejudicial effect of the co-defendant's

statement is so insignificant, that it is beyond a reasonable doubt that improper use of

the statement is harmless." United States v. Beale, 921 F.2d 1412, 1425 (11th Cir.

1991).

Since Logan was charged only with robbery and not murder, the key issue at trial

was whether he in fact planned and participated in the robbery, and we look to the

properly admitted evidence of such. In addition to the admission of Roan's redacted

statement that "another individual" had planned and participated in the robbery with

him, the major evidence that Logan did in fact plan and participate in the robbery was

the testimony of Betty Cole Hardaway.

Cole Hardaway testified that Darren Hardaway (her boyfriend at the time of the

crime and her husband at trial) told her that Roan and Logan had talked about robbing

a gun store and that they were "up there" [Minneapolis] earlier that day but the store

was closed. (Tr. at 287.) She testified that after the robbery Roan and Logan came

with the guns to the apartment in Mankato she shared with Darren Hardaway, and
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calmly told them what they had done. She testified: "He [Logan] said that they went

into the gun store and there were two men there, and that they each had shot one person

in the head, and one of the mens [sic] was wounded in the side and that he knelt down

and shot him in the head." (Tr. at 288.) Cole Hardaway testified that approximately

two hours later they all left for Chicago. We note that at the time of her testimony,

Cole Hardaway's husband had pled guilty to the gun-trafficking charges, but had not

yet been sentenced. (Tr. at 1118-19.) 

Additional evidence showed that when he was picked up in Chicago still in the

company of Roan and Hardaway, Logan had a loaded semi-automatic pistol stolen from

Lloyd's in his waistband. (Tr. at 1281-82.)

Logan's version of events is that he had no knowledge that Roan intended to

commit the robbery. He maintains that he was surprised by the shootings, that he did

not shoot either of the clerks, and that after the shootings he acted under coercion or

duress in carrying the guns out of the store and then transporting them to Chicago. At

the time the robbery took place, Logan had just turned twenty years old and had moved

to Mankato approximately a year earlier. (Tr. at 1685.) Prior to moving to Mankato,

Logan had completed one year of college at William Penn in Oskaloosa, Iowa. (Tr. at

1683.) He moved to Mankato after that year to be with his girlfriend and attend

Mankato State University, but he never enrolled, intending to wait a year so as not to

lose a year of athletic eligibility. (Tr. at 1685-86.) Logan stated that he met Hardaway

soon after moving to Mankato through his job as a security guard, (Tr. at 1687-88.),

and met Roan through mutual friends in approximately January. (Tr. 1708-09.) Roan

was several years older than Logan, and was identified by Hardaway as a member of

the Chicago street gang Four Corner Hustlers. (PSR 6.) Hardaway described Logan

as "Zack's [Roan's] guy." (PSR 6.) Prior to this crime, Logan had a criminal history

score of zero. (PSR 12.)
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Logan testified at trial that the morning of the robbery he had been target

shooting with some friends, including Roan, and that Roan had given him a semiautomatic pistol to shoot with which he [Logan] kept in his coat after they left the field.

(Tr. at 1731.) Logan stated that he had been taught to shoot by his father, taken

shooting at a young age, and that he had been out target shooting approximately four

or five times while living in Mankato, but did not own his own gun. (Tr. at 1715.)

According to Logan, that day after they finished target shooting Roan asked him for a

ride to Lloyd's Gun Shop. (Tr. 1736.) Logan stated that he initially refused, but

relented after Roan later asked him again several times. (Tr. 1736-38.) Logan testified

that he was aware of the fact that Roan often purchased guns. (Tr. at 1694, 1813.) At

trial, Logan testified to a version of the events at Lloyd's substantially similar to the

version he had given to police in Chicago: 

So I'd say about within the next five to six minutes Zach pulled his gun

out and shot the other guy. And then he ran over to where I was at and

I was just like sitting with my hands in my pockets, and he shot the other

guy about two, I think two or three times . . . . I was, like, I thought you

was going to buy the gun. And he's like, fuck this, fuck that, just grab the

rifles, grab the rifles. And so I went around–before that, I had went to the

guy that he had shot first and I did like this (indicating) and the guy was

dead. And I grabbed, I think, two or three rifles and I sat them down in

front of the door. And before that I had sat my pistols up on top of the

glass counter, you know. And then while I was taking the guy's pulse,

you know, I heard another shot, you know, and I looked back and Zach

was grabbing these boxes and stuff. And my gun was lying on the floor,

so I went and grabbed it, put it in my pocket.

(App. at 76.)

Logan testified that after he picked up his gun he told Roan, "I can't stand this,"

and went out to the car. (Tr. at 1763.) Roan followed him, pointed a gun at him while

he was seated in the car, and told him to get back inside and help with the rifles, which
8Count 2: Robbery Affecting Interstate commerce, in violation of 18 U.S.C. §

1951.

9Count 3: Use and Carrying a Firearm in a Crime of Violence, in violation of 18

U.S.C. §§ 924(c)(1) and 2.

10Count 1: Conspiracy, in violation of 18 U.S.C. § 371.

11Count 33: Unlicenced Dealing in Firearms, in violation of 18 U.S.C. §§

922(a)(1)(A), 924(a)(1)(D) and 2.

12Count 34: Transportation and Receipt of Stolen Firearms, in violation of 18

U.S.C. §§ 922(j), 924(a)(2), and 2.

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he did out of fear of death. (Tr. at 1764.) On the way back to Mankato, Roan warned

him, "Don't be the weak link in the chain." (Tr. at 1774.)

In light of this conflicting evidence and the fact that Logan was acquitted by a

state court jury for essentially the same crime, we cannot say the admission of Roan's

statement that "another individual" had planned and participated in the robbery with

him was harmless beyond a reasonable doubt. Accordingly, Logan is entitled to a new

trial on the charges of robbery8 and use of a firearm in a crime of violence.9 We affirm

Logan's convictions for conspiracy,10 unlicenced firearms dealing,11 and transportation

and receipt of stolen firearms,12 and remand for resentencing on these convictions.

Conclusion

We have carefully considered all of the arguments presented by the defendants,

and for the foregoing reasons affirm in part and reverse in part and remand to the

district court for proceedings not inconsistent with this opinion.
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A true copy.

Attest.

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