United States v. John Charles Flaherty

76 F.3d 967, 43 Fed. R. Serv. 1025, 1996 U.S. App. LEXIS 3128, 1996 WL 80080
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 27, 1996
Docket95-1874
StatusPublished
Cited by45 cases

This text of 76 F.3d 967 (United States v. John Charles Flaherty) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John Charles Flaherty, 76 F.3d 967, 43 Fed. R. Serv. 1025, 1996 U.S. App. LEXIS 3128, 1996 WL 80080 (8th Cir. 1996).

Opinions

DIANA E. MURPHY, Circuit Judge.

John Charles Flaherty appeals his conviction on two counts of aiding and abetting arson for which he received concurrent 37 month sentences and three years supervised release. On appeal he argues that the district court1 erred by admitting a nontestify-ing codefendant’s statements in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), denying his motion for severance, and excluding evidence tending to show that a third party might have set the fires. He also claims that the evidence was insufficient to support the jury’s verdict. We affirm.

Eddy’s Hamburger and Malt Shop in Long Lake, which was owned and operated by Flaherty, was destroyed by two deliberately set fires that occurred approximately two weeks apart. On December 31, 1988, the fire department responded to put out a fire at the restaurant. An investigation found multiple points of origin, evidence of a liquid acceler-ant, and the remains of “trailers” consisting of commercial restroom roller towels that had been carefully draped from one fire location to the other. There was no evidence of forced entry, and all doors had been locked. The fire marshal investigator concluded that the fire had been set intentionally. On January 12, 1989 a second fire broke out at the restaurant. That investigation uncovered evidence that flammable liquids had been poured throughout the restaurant. There was no sign of forced entry. The fire marshal determined that this fire had also been deliberately set.

After an extensive investigation, Flaherty and Gregory Lee Melina were indicted by a grand jury and each charged with two counts of aiding and abetting arson, in violation of 18 U.S.C. §§ 844(i) and 2, and one count of conspiracy to commit arson, in violation of § 18 U.S.C. § 844(i). Both pleaded not guilty and went to trial before a jury. Flah-erty was convicted for both fires, but Melina was convicted only of involvement in the second, and his appeal is proceeding separately.

The evidence at trial suggested that Flah-erty was in severe financial trouble and set the fires to collect insurance proceeds, which he promised to share with Melina. Flaherty had incurred significant business and personal debts. The restaurant, which was his only source of income, was not generating a cash flow sufficient to cover expenses. He had not paid the taxes withheld from his employees’ wages, and he owed the state significant amounts for unemployment compensation. In addition, his second business venture, the development of a teen nightclub across the street from Eddy’s, had failed. In the weeks prior to the first fire, Flaherty learned that [970]*970significant expenses would have to be paid before the building could open and that the city council had denied his permit applications.

The evidence also suggested that Flaherty had an opportunity to set or aid in setting the fires. He closed the restaurant early on the day of the first fire. He entertained guests at his home in the evening, but there was evidence to show that he left his guests for nearly two hours shortly before the fire was discovered. The night of the second fire Flaherty had an alibi; he was in bed recovering from hernia repair surgery that he had undergone that afternoon. The timing of the surgery was shown to be suspicious, however. Flaherty had told others that his doctor told him to have the operation on that day. The doctor testified at trial that he had told Flaherty the surgery could be scheduled at will and that Flaherty had called on January 10 to schedule the surgery for two days later, the day of the fire.

There was physical evidence to link Flah-erty to the fire scene. Analysis of the toweling material used as a trailer in the first fire revealed that it had been soaked with a medium petroleum distillate similar to mineral spirits. Mineral spirits and burned scraps of similar toweling were found inside a locked area of the building that had been leased for the teen nightclub. Only Flaherty and Tom Gestach, his business partner in the nightclub, had keys. The police also recovered a half-roll of similar toweling from the nightclub. After the second fire, Flaherty decided to give up on the nightclub venture. When he and Gestach were removing contents from the building, they uncovered a pile of toweling that had been ripped into strips similar to the trailers. Flaherty attempted to conceal the existence of these toweling strips. He placed them in a bag and convinced Gestach to carry it to a dumpster at a nearby Burger King. He told Gestach that he was being framed.

The jury also heard evidence that suggested Flaherty may have attempted to divert suspicion away from himself by falsely reporting burglaries and mysterious threats over a period of time before the fires were set. He reported a string of burglaries at the restaurant, but police became suspicious because there was no sign of forced entry and no damage done. He also reported receiving a threatening phone call about his involvement in the teen night club, but police later found several scripts for the call on the nightclub premises and a diary entry by Flaherty identifying the call as a “phony harassment call.”

There was also evidence linking Flaherty with Melina. The parties stipulated that the two knew each other, having met in the late 1970’s or early 1980’s. Liz Sorenson, Flaherty’s friend and an employee at Eddy’s, testified that Flaherty had used her telephone several times to contact someone named Greg and that she had received telephone calls for Flaherty from someone who identified himself as Greg. She also testified that during the time between the fires she had accompanied Flaherty when he was looking for someone matching Melina’s description. In addition, a chalkboard found in Melina’s basement had traces of an accurate drawing of Eddy’s.

On appeal Flaherty argues that his Sixth Amendment right to confrontation was violated by the admission of certain out-of-court statements made by Melina, who did not testify and thus was not available for cross examination. Flaherty claims that the statements incriminated him in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Three separate statements were involved. First, statements made by Melina at a deposition in a related civil case were admitted into evidence. They concerned his contacts with Flaherty. Hal Shillingstad, the attorney who took the deposition, testified that Melina had told him “I ain’t seen Johnny since 1980, and I’ve seen him one time back maybe in ’84. That was the last time I seen him,” and “when I knew him, he drove a white, I think it was a Cadillac, white Cadillac or something_” (T. 918-20). Flah-erty argues that this is incriminating if combined with the testimony of Flaherty’s wife that they had owned a white Cadillac between September 1988 and March or April 1989. He argues that the two pieces of evidence show that he and Melina had seen [971]*971each other near the time of the fire. Second, Heather Westergaard testified about threats made by Melina during a telephone conversation in April 1994.

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Bluebook (online)
76 F.3d 967, 43 Fed. R. Serv. 1025, 1996 U.S. App. LEXIS 3128, 1996 WL 80080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-charles-flaherty-ca8-1996.