United States v. Gregory Lee Melina

101 F.3d 567, 45 Fed. R. Serv. 1387, 1996 U.S. App. LEXIS 30900, 1996 WL 683713
Court of Appeals for the Eighth Circuit·Decided November 29, 1996·No. 95-1802·Published·Cited by 39 cases

Opinions

HANSEN, Circuit Judge.

Gregory Melina appeals from the final judgment entered by the district court1 upon his conviction of aiding and abetting arson. He claims that (1) the district court erred by failing to sever his ease from a nontestifying codefendant’s, (2) the district court erroneously excluded evidence that would have shown that a third party was responsible for the fires, (3) the government failed to show any connection between the building that was burned and interstate commerce, and (4) the evidence was insufficient to sustain his conviction. We affirm.

I.

This ease arises out of two deliberately set fires that destroyed Eddy’s Hamburger and Malt Shop (Eddy’s), located in Long Lake, Minnesota, and owned and operated by John Charles Flaherty. The fires occurred approximately two weeks apart, the first on December 31, 1988, and the second on January 12,1989. Flaherty and appellant Melina were charged in connection with the fires in a three-count indictment. The first two counts charged the defendants pursuant to 18 U.S.C. § 844(i) and § 2 with aiding and abetting each other in malicious damage and destruction and attempted damage and destruction of a building being used in interstate commerce. Each of the two aiding and abetting counts represented one of the fires. The defendants were also charged with a conspiracy count under 18 U.S.C. § 371.

Melina and Flaherty pleaded not guilty to the charges in the indictment, and the case proceeded to trial. At the conclusion of the evidence, the district court dismissed the conspiracy count on the basis of insufficient evidence. Flaherty was found guilty of both aiding and abetting counts, but Melina was found guilty of only the second count, which concerned the January 12 fire. A more complete recitation of the facts and the circumstances surrounding the arsons can be found in this court’s opinion affirming Flaherty’s conviction on direct appeal. See United States v. Flaherty, 76 F.3d 967, 969-70 (8th Cir.1996).

II.

A.

Melina contends that the district court erred in failing to sever his trial from Flaherty’s. Melina first argues that the district court’s failure to sever his trial violated the Bruton rule because, even though Flaherty did not testify, the court admitted out-of-court statements made by him that implicated Melina in the crime. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton, the Supreme Court held that in a trial where two or more defendants are tried jointly, the admission of a nontesti-fying codefendant’s confession that expressly implicates the defendant violates the defendant’s Sixth Amendment confrontation rights, even if the district court gave the jury limiting instructions to consider the confes[570]*570sion only against the eodefendant who confessed. Id. at 126, 88 S.Ct. at 1622-23; United States v. Escobar, 50 F.3d 1414, 1422 (8th Cir.1995) (applying Bruton). However, “[i]f a eodefendant’s confession does not incriminate the defendant on its face, but does so only when linked to additional evidence, it may be admitted if a limiting instruction is given to the jury and the defendant’s name is redacted from the confession.” Flaherty, 76 F.3d at 972 (citing Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987)). Furthermore, Bruton does not apply at all when a eodefendant’s statements do not incriminate the defendant either on their face or when considered with other evidence. Escobar, 50 F.3d at 1422.

In the instant case, Melina points to three out-of-court statements made by code-fendant Flaherty that serve as the basis for his Bruton argument. The first was Flaherty’s denial that he had contact with Melina during the time frame when the arsons occurred; this statement was made in a deposition in a civil case in which Flaherty was seeking to recover insurance benefits for the destruction of Eddy’s. The second was Flah-erty’s statement to law enforcement officers concerning the nature of his relationship with Melina. The third was Flaherty’s statement to one Liz Sorenson, shortly after the fires occurred, that he was trying to locate Melina. The district court expressly instructed the jury that it was to consider the out-of-court statements made by Flaherty and Melina only with respect to the guilt of the individual who made the statements. See Flaherty, 76 F.3d at 971 n. 4.

We find no Bruton violation here. The statements that Melina challenges do not in any manner on their face inculpate Melina but, at most, inculpate Melina when considered with other evidence received at trial. In fact, they do not refer to either the December 31 fire or the January 12 fire on which Melina’s conviction rested and do not refer to any wrongdoing at all. Assuming that Flaherty’s statements are incriminating when considered with other evidence received at trial, the district court’s limiting instructions effectively cured any risk of harm to Melina. See id. at 972.

In any event, even if we were to conclude that the admission of Flaherty’s statements constituted a Bruton violation, such a conclusion would not advance Melina’s case, because the error in admitting the statements was harmless. See Flaherty, 76 F.3d at 972 (harmless error analysis applicable to Bruton violations). As we outline more fully below, the evidence against Meli-na is overwhelming, even if these statements are not considered.2

In addition to his Bruton claim, Meli-na also makes a general argument that the district court should have severed his trial from Flaherty’s. Melina contends that severance was required when the district court dismissed the conspiracy counts against him and Flaherty because, without the conspiracy, the taint from the out-of-court statements of one defendant had a spillover effect onto the other defendant.

[571]*571There is “a clear preference ‘for joint trials of defendants who are indicted together.’ ” United States v. Shivers, 66 F.3d 938, 939 (8th Cir.) (quoting Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993)), cert. denied, — U.S. -, 116 S.Ct. 581, 133 L.Ed.2d 503 (1995). Further, individuals who are charged in an indictment as cocon-spirators should, as a general matter, be tried together. United States v. Koskela, 86 F.3d 122, 126 (8th Cir.1996); Shivers, 66 F.3d at 939. Absent some showing of prejudice, it is of no consequence that the conspiracy counts were dismissed by the district court. See Schaffer v. United States,

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United States v. Gregory Lee Melina, 101 F.3d 567, 45 Fed. R. Serv. 1387, 1996 U.S. App. LEXIS 30900, 1996 WL 683713 (8th Cir. 1996).

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