Appeals from the United States No. 08-3164 District Court for the Western District of Missouri.
The opinion of the court was delivered by: Smith, Circuit Judge
Submitted: September 22, 2009
Before BYE, SMITH, and COLLOTON, Circuit Judges.
A jury found Steven Sandstrom and Gary Eye (collectively, "defendants") guilty for their roles in the shooting death of William McCay, an African-American male. Sandstrom and Eye targeted McCay because of his race while he walked on a public street. Defendants were charged with (1) interfering with federally-protected activities, in violation of 18 U.S.C. § 245(b)(2)(B) and 18 U.S.C. § 2 ("Count 1"); (2) using a firearm during and in relation to a crime of violence as set forth in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 18 U.S.C. § 2 ("Count 2"); (3) interfering with federally-protected activities with death resulting, in violation of 18 U.S.C. § 245(b)(2)(B) and 18 U.S.C. § 2 ("Count 3"); (4) using a firearm during and in relation to a crime of violence causing murder as set forth in Count 3, in violation of 18 U.S.C.§ 924(c)(1)(A)(iii), (j)(1), and 18 U.S.C. § 2 ("Count 4"); (5) tampering with a witness, in violation of 18 U.S.C. § 1512(a)(1)(C), (a)(3)(A), and 18 U.S.C. § 2 ("Count 5"); (6) using a firearm during and in relation to a crime of violence causing murder as set forth in Count 5, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), (j)(1), and 18 U.S.C. § 2 ("Count 6"); (7) destroying records in a federal investigation, in violation of 18 U.S.C. § 1519 and 18 U.S.C. § 2 ("Count 7"); and using a firearm to commit a felony as set forth in Count 7, in violation of 18 U.S.C. § 844(h)(1) and 18 U.S.C.§ 2 ("Count 8"). Additionally, Sandstrom was charged with retaliating against a witness, in violation of 18 U.S.C. § 1513(b)(2) ("Count 9").
The jury found Eye guilty on Counts 1--8 and Sandstrom guilty on Counts 3--9. The jury acquitted Sandstrom on Counts 1 and 2. Thereafter, the district court*fn1 sentenced both defendants to life imprisonment.
Sandstrom and Eye appeal, arguing that the district court (1) abused its discretion in denying their motions to sever because their defenses were mutually antagonistic and irreconcilable, resulting in an unfair trial; (2) erred in failing to dismiss multiplicitous counts in the indictment; (3) erred in denying their motions to dismiss Counts 1, 3, and 5 on the grounds that 18 U.S.C. § 245 is an unconstitutional exercise of Congress's Commerce Clause power; and (4) abused its discretion in denying their motions for a mistrial based on the prosecutor's alleged comments about their failure to testify. Additionally, Eye argues that (1) the evidence is insufficient to support his convictions on Counts 1 and 2 and (2) the district court erred in failing to grant his request for a mistrial and severance, in violation of his Sixth Amendment right to confrontation.
For the reasons set forth below, we affirm.
On the evening of March 8, 2005, Sandstrom, Eye, and Regennia Rios drove around Kansas City, Missouri, in a stolen Dodge Intrepid looking for another car to steal. Sandstrom, who was driving the Intrepid, pulled in behind a Jeep that was parked in a driveway. Sandstrom and Eye exited the Intrepid and stole the Jeep. Thereafter, Sandstrom drove the Intrepid, while Eye drove the Jeep with Rios as his passenger.*fn2 The parties briefly separated, but they subsequently decided to meet at the home of Jonnie Renee Chrisp, Rios's cousin.
After Sandstrom arrived at Chrisp's house, he informed Eye and Rios that "he just shot a n****r at 7-Eleven." Sandstrom appeared "frantic" and "intense." Sandstrom, Eye, and Rios then went to Sandstrom's house, where Sandstrom told his mother that he had "just shot a n****r." They then went to Sandstrom's room and smoked methamphetamine. Eye subsequently received a phone call from Vincent Deleon, and the three left Sandstrom's house in the Intrepid to go pick up Deleon at Chrisp's house. Sandstrom brought a gun with him.
After picking up Deleon at Chrisp's house, Sandstrom, Eye, Rios and Deleon-all high on methamphetamine-left in the Intrepid to steal a third car. During the drive, Sandstrom asked Deleon "if he heard about the shooting at the 7-Eleven" and told Deleon about how he had "just shot at some n****r." Eye replied to Sandstrom that "if you get to do one, I get to do one." Sandstrom responded that "it wasn't like that, dawg," to which Eye replied, "[Y]ou started it. Let's finish it."
At some point during the drive, Sandstrom removed a .22 caliber revolver from a brace-like holster on his back. Sandstrom told Deleon that he could "kill a n****r quick." Deleon responded that he would not kill anybody but that he would "probably shoot them in the legs." Eye also said that he "would kill a n****r quick." During the drive, Sandstrom and Eye casually passed the gun back and forth between them.
The four drove into a neighborhood where Sandstrom and Eye stole the third vehicle of the night-another Jeep. Deleon drove away in the latest Jeep, while Sandstrom, Eye, and Rios returned to Sandstrom's house in the Intrepid. They arrived at Sandstrom's house between midnight and 1:00 a.m. Around 5:00 a.m. on March 9, 2005, Eye received a phone call from Deleon saying that he needed Eye to pick up Chrisp from a gas station. The three left Sandstrom's house to go pick up Chrisp and, during the drive, Eye told Sandstrom that when he saw an African American "it's on site," meaning that when Eye saw a black person, he would attack him.
When the three arrived at the gas station, Chrisp got in the car and asked to be taken to her home. Eye said that was a good idea because, if she stayed with them, "she would probably see something she didn't want to see." Sandstrom then asked Chrisp whether she had seen anything on the news about the shooting in front of the 7-Eleven and told her that he had "shot at some n****r." He also told Chrisp that she was "about to witness a homicide." Chrisp again asked to be taken to her home.
After dropping off Chrisp, Sandstrom, Eye, and Rios drove down 8th Street to "avoid police presence." When they got to Kensington Street, Rios saw William McCay, an African-American man. McCay was walking on the left side of 9th Street. Sandstrom planned to make a right turn, but Eye told him to "hit the alley" and give him the gun. Sandstrom gave Eye the gun and turned down the alley connecting 8th and 9th Streets.
Sandstrom drove to the end of the alley, and Eye put his arm out the window and fired at least two shots at McCay from roughly three to four feet away. Rios looked directly at McCay's face before ducking behind the seat. A man standing outside of a restaurant heard the shots around 6:00 a.m.. The restaurant was located approximately 80 feet from the intersection of 9th Street and Spruce Avenue. The man did not call the police because he did not think it uncommon to hear gunshots in that neighborhood.
After shooting at McCay, Eye told Sandstrom to drive around the block, and Sandstrom went left on Spruce Avenue and came back out on Kensington Avenue. When they got back to 9th Street, Eye did not see McCay. Eye "started freaking out" and became "frantic." Eye was "tripping" and could not understand how McCay was no longer there; he wanted to go find McCay. Sandstrom told Eye that he was "tripping and doing too much." Sandstrom then looked at Rios, and Rios told Sandstrom to go back and find McCay because McCay "was a case that we would probably catch." Rios meant that McCay was a witness that could implicate them in the shooting. Sandstrom then went down 9th Street until Eye told him to turn on Van Brunt Boulevard. Sandstrom turned on Van Brunt Boulevard, on 8th Street, and then on Brighton Avenue. He followed all of Eye's directions. Once on Brighton Avenue, Eye instructed Sandstrom to pull the car over, and Sandstrom complied. Rios saw McCay again at 9th Street and Brighton Avenue. Eye got out of the car and walked toward McCay with the gun in the pocket of his sweatshirt. Eye met McCay in the middle of 9th Street and began to struggle with him. Eye pulled the gun and fired at McCay. McCay stumbled to the other side of the street and collapsed. Rios reported hearing one or two shots fired. McCay died from a single, .22 caliber gunshot wound to the chest. A 911 call at 6:12 a.m. reported hearing shots fired at the location.
After hearing Eye fire the shots, Rios told Sandstrom to go get Eye. Sandstrom then pulled up to Eye and opened the door. Eye got in the vehicle. At that point, McCay stumbled in front of the car to the other side of the street. McCay went to the other side of 9th Street. Rios did not know what happened to McCay when he got to the other side of 9th Street because the trio "sped off." They went to Sandstrom's house, where Eye and Rios retrieved one of the stolen Jeeps; Sandstrom remained in the Intrepid. Sandstrom then led Eye and Rios to a location under the Manchester Street Bridge, where Sandstrom and Eye set the Intrepid on fire. Sandstrom, Eye, and Rios subsequently left the scene in the Jeep and drove to a friend's house to pick up Deleon.
When they arrived at their friend's house, they heard a news report that three black males were suspected in the homicide at 9th Street and Brighton Avenue. Sandstrom and Eye laughed. Sandstrom declared "that's my car" when the news reported on the burning Intrepid. Deleon and Eye went outside, where Eye told Deleon that he "did that s**t" and "smoked that n****r." Sandstrom came outside, laughing, and said "yep," which Deleon understood as Sandstrom confirming what Eye had said.
Sandstrom, Eye, Rios, and Deleon left the friend's house in the Jeep. During the drive, Deleon asked Sandstrom, Eye, and Rios what they had been doing. Eye replied that he had "killed a n****r on 9th Street." And, Sandstrom told Deleon that he had "just burnt the Intrepid under the bridge." The four drove past the intersection of 9th Street and Brighton Avenue where emergency vehicles and news vans were present.
When Deleon asked what was going on, Eye bragged, "Did you think this was a game? I told you, I killed some n****r." Then, Sandstrom said, "That's where [Eye] shot that n****r." Eye started laughing and said, "[H]ere, n****r, n****r, n****r."
The four returned to Chrisp's house and turned on the news, which was reporting on the car fire. Sandstrom declared that it was "a waste of a perfectly good car." Chrisp testified that she overhead bits and pieces of their conversation, including someone saying, "I got that one off, you got that one off." Sandstrom, Eye, Rios, and Deleon then split up, with Deleon and Eye going to one location, and Sandstrom and Rios going to another. Eye told Deleon that he and Sandstrom had been playing a game called "n****r, n****r, n****r." Deleon described the game as "kill[ing] black people."
A few days after the shooting, Sandstrom, Eye, Rios, Sandstrom's girlfriend, Kristina Chirino, and a few others were in Chirino's basement. Eye bragged to the group that he killed a "n****r." Eye expressed disbelief to the group that McCay was not at the intersection at 9th Street and Spruce Avenue after the first shooting and explained that he shot McCay because McCay was in "my hood on my time." Rios explained that she told Sandstrom to turn the car around and "finish [McCay] off" because Eye had already shot him once. She also said, referring to the earlier shooting that Sandstrom claimed to have committed at 7-Eleven, that "if [Sandstrom] had better aim there would be two dead n*****s instead of one."
About a week later, the police came to Chirino's house to arrest Sandstrom. Before the police entered the house, Sandstrom hid a gun in the closet. Sandstrom's sister eventually retrieved the gun and threw it into the river. The police later recovered a .22 revolver from the river.
In late July 2005, while in custody, Sandstrom wrote a letter to one of Rios's friends. In it, Sandstrom wrote that "that b***h [Rios] better be out my hood when I get out." Sandstrom also wrote, "[Rios] knows as much as you do I'm a killer" and that he would "beat [Rios's] a**" when he saw her.
A federal grand jury returned a nine-count superseding indictment against Sandstrom and Eye. After trial, the jury found Eye guilty on Counts 1--8 and Sandstrom guilty of Counts 3--9. The jury acquitted Sandstrom on Counts 1 and 2. Thereafter, the district court sentenced Eye and Sandstrom to life imprisonment.
On appeal, Sandstrom and Eye argue that the district court (1) abused its discretion in denying their motions to sever because their defenses were mutually antagonistic and irreconcilable, resulting in an unfair trial; (2) erred in failing to dismiss multiplicitous counts in the indictment; (3) erred in denying their motions to dismiss Counts 1, 3, and 5 on the grounds that 18 U.S.C. § 245 is an unconstitutional exercise of Congress's Commerce Clause power; and (4) abused its discretion in denying their motions for a mistrial based on the prosecutor's alleged comments about their failure to testify. Additionally, Eye argues that (1) the evidence is insufficient to support his convictions on Counts 1 and 2 and (2) the district court erred in failing to grant his request for a mistrial and severance, in violation of his Sixth Amendment right to confrontation.
Both Sandstrom and Eye assert that the district court abused its discretion in denying their motions to sever based on mutually antagonistic defenses. In addition, Eye contends that the district court abused its discretion in denying his motion to sever based on a Confrontation Clause violation.
"We will not reverse a denial of a motion to sever unless the appellant demonstrates an abuse of discretion resulting in clear prejudice." United States v. Lewis, 557 F.3d 601, 609 (8th Cir. 2009) (internal quotations and citation omitted).
1. Mutually Antagonistic Defenses
Sandstrom contends that his defense and Eye's defense were mutually antagonistic and irreconcilable. Sandstrom's defense contended that Eye shot McCay and that Sandstrom did not know that Eye was going to kill McCay. Sandstrom asserted that he had no intent to kill McCay or assist Eye in doing so and did not act with a racial motive. Sandstrom represents Eye's defense as completely contradictory because Eye contends that Sandstrom-not Eye-shot McCay at 9th Street and Brighton Avenue. According to Eye, no one fired a shot at 9th Street and Spruce Avenue. Eye accused Sandstrom of shooting McCay while Eye fought McCay at 9th Street and Brighton Avenue. Sandstrom maintains that if the jury believed the core of Eye's defense-Sandstrom was the shooter-then it would be impossible for the jury to acquit Sandstrom on Counts 3--6. Sandstrom avers that the jury had to reject Sandstrom's defense to accept Eye's defense.
Eye also argues that his defense and Sandstrom's defense were mutually antagonistic and irreconcilable. According to Eye, his defense was that (1) the first shooting at 9th Street and Spruce Avenue never occurred and was a fabrication by Rios; (2) finding McCay at 9th Street and Brighton Avenue was a chance encounter; and (3) Eye got in a fight with McCay in the middle of the street and either Rios or Sandstrom shot McCay without warning at 9th Street and Brighton Avenue. Eye characterizes Sandstrom's defense as arguing that Eye fired at McCay at 9th Street and Spruce Avenue without Sandstrom's knowledge and that Eye shot McCay at 9th Street and Brighton Avenue to keep McCay from testifying.
The government responds to both defendants' arguments by maintaining that the district court did not abuse its discretion in denying defendants' motions to sever based on mutually antagonistic defenses. First, the government argues that defendants failed to establish that the defenses that they presented at trial were truly mutually antagonistic. In support of this argument, the government contends that the "core" of Sandstrom's defense was that he is not a racist and that, regardless of how many shootings occurred or who the victim was, he was unaware that the shootings were going to occur. The "core" of Eye's defense was that he is not a racist and that, regardless of how many shootings occurred, he was not the shooter. The government thus argues that Sandstrom denied prior knowledge of the shootings, whereas Eye denied participation in the shootings, and both denied being motivated by race. As a result, according to the government, neither the core of Sandstrom's defense nor the core of Eye's defense was that the other defendant was the shooter or that the other defendant was motivated by race. Consequently, a jury could believe that Sandstrom did not have prior knowledge of the shootings without necessarily having to find Eye guilty. Likewise, a jury could believe that Eye was not the shooter without necessarily finding Sandstrom guilty. And, the jury could have believed the core of both defenses if it either believed the shootings were not motivated by race or concluded that Rios was the shooter.
Second, the government argues that, even assuming the defenses were mutually antagonistic and irreconcilable, defendants have failed to show that any conflict between their defenses was the only basis for the jury's verdict, meaning severance was not warranted. According to the government, the basis for the jury's verdict was not a conflict between defendants' respective defenses but instead a conflict between their defenses and the government's evidence, including the testimony of Rios, who witnessed the crimes charged.
Third, the government maintains that, even if severance was warranted, defendants have failed to show prejudice resulting from their joint trial, as the witnesses' testimony would have remained the same even if they were tried separately. Therefore, they cannot show that they would have fared better in separate proceedings. Additionally, the government cites the Supreme Court and this court's recognition that the risk of prejudice from a joint trial is best resolved through jury instructions and avers that the district court provided sufficient instructions to deal with any prejudice resulting from the joint trial.
"It is entirely proper to charge two or more defendants together 'if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.'" United States v. Bostic, 713 F.2d 401, 402 (8th Cir. 1983) (quoting Fed. R. Crim. P. 8(b)). "This case meets that standard, and no one contends otherwise, so there is no issue of misjoinder in violation of Rule 8. The claim is, instead, that the joinder was prejudicial, and that the District Court should have granted a severance under Fed. R. Crim. P. 14." Id. Rule 14(a) provides that
[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.
"Severance will be allowed upon a showing of real prejudice to an individual defendant." Id. at 403 (internal quotations and citation omitted). Whether to grant a motion to sever is left "to the discretion of the trial court, and a denial of severance is not grounds for reversal unless clear prejudice and an abuse of discretion are shown." Id. (internal quotations and citation omitted). "Prejudice must be 'real' and 'clear,'" and "[a]n abuse of discretion in refusing severance is not alone enough to justify reversal and a new trial." Id. Instead, the defendant must show prejudice-that there was "some appreciable chance that defendants would not have been convicted had the separate trial they wanted been granted." Id. That is, the defendant must show "something 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. Wint, 974 F.2d 961, 966 (8th Cir. 1992) (internal quotations and citation omitted). "A defendant can show real prejudice either by showing that his defense is irreconcilable with the defense of his co-defendant . . . or that the jury will be unable to compartmentalize the evidence as it relates to separate defendants." United States v. Shivers, 66 F.3d 938, 940 (8th Cir. 1995) (internal quotations, alteration, and citation omitted). "The defendant carries a heavy burden in making this showing." United States v. Swinney, 970 F.2d 494, 500 (8th Cir. 1992).
"'Antagonistic' defenses require severance only when there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996) (internal quotations and citation omitted). In Zafiro v. United States, the Supreme Court considered "whether Rule 14 requires severance as a matter of law when co-defendants present 'mutually antagonistic defenses.'" 506 U.S. 534, 535 (1993). The Court rejected the petitioners' argument that it adopt a bright-line rule "mandating severance whenever co-defendants have conflicting defenses." Id. at 538. "Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Id. at 538--39. According to the Court, the only time a district court should grant a severance is "if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539. "Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a co-defendant." Id. The Court recognized that "[t]he risk of prejudice will vary with the facts in each case." Id. And it also noted that "[w]hen the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but . . . less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Id.
In Zafiro, the defendants also argued that, where defendants accuse one another of the crime alleged against them, the jury may conclude "that at least one of the two must be guilty without regard to whether the Government has proved its case beyond a reasonable doubt." Id. at 540. As to this argument, the Court concluded that such a scenario did not occur in the case before it, as the "[t]he Government argued that all four petitioners were guilty and offered sufficient evidence as to all four petitioners; the jury in turn found all four petitioners guilty of various offenses." Id.; see also United States v. Mason, 982 F.2d 325, 328 (8th Cir. 1993) ("Even assuming we conclude a severance would have been appropriate for any of the reasons given by Mason . . . reversal is not required . . . [because] [t]here has been no showing . . . that the denial of severance affected the jury verdict against Mason in light of the overwhelming evidence of his guilt."); Bostic, 713 F.2d at 402 ("We have studied the entire record and are morally certain that the denial of severance did not affect the jury verdict against appellants. It is not that Green's testimony was unimpressive. At least one juror seems to have believed him, because the jury could not agree on a verdict as to Green . . . .The dispositive point for us is the overwhelming strength of the government's evidence, wholly apart from Green's testimony.").
Additionally, the Court pointed out that even if a risk of prejudice existed, "it is of the type that can be cured with proper instructions, and juries are presumed to follow their instructions." Zafiro, 506 U.S. at 540 (internal quotations and citation omitted).
Here, even if we concluded that Sandstrom's and Eye's defenses were mutually antagonistic and irreconcilable, severance is not required because "this conflict alone" will not cause the jury to "unjustifiably infer" "that both are guilty." See Delpit, 94 F.3d at 1143. As in Zafiro, the government offered sufficient evidence independent of any alleged conflict between Sandstrom's and Eye's defenses as to their guilt. In response to Sandstrom's defense that he did not know that a shooting was going to take place, the government presented Chrisp's testimony that Sandstrom held up a gun and told Chrisp that she was "about to witness a homicide." Deleon also testified that Sandstrom told him that he could "kill a n****r quick." And, according to the testimony of Rios-who was present when the crimes occurred-Eye told Sandstrom, "if you get to do one, I get to do one" and that when he saw an African-American, it would be "on site." Rios also testified that Sandstrom gave Eye the gun, without hesitating, after Eye and Rios spotted McCay walking alone and that it was obvious what Eye was going to do with the gun. She also stated that, after the first shooting at 9th Street and Spruce Avenue, Sandstrom, Eye, and Rios decided to find McCay, and Sandstrom drove around looking for McCay after the first shooting. Sandstrom also pulled the car over to let Eye out after they found McCay at 9th Street and Brighton Avenue.
Additionally, Rios's testimony contradicted Eye's defense that only one shooting occurred (at 9th Street and Brighton Avenue) and that he was not the shooter. Rios testified that Eye shot McCay at 9th Street and Spruce Avenue and that Eye shot and killed McCay at 9th Street and Brighton Avenue. Rios's testimony was corroborated by other government witnesses who testified that Eye admitted to shooting McCay and that Sandstrom confirmed it.
Accordingly, we find that it was the government's evidence-not any perceived conflict between Sandstrom's and Eye's defense theories-that was the basis for the jury's verdicts.
Moreover, just as in Zafiro, the district court adequately addressed any risk of prejudice by properly instructing the jury. The district court instructed the jury that it was "to decide from the evidence whether each defendant is guilty or not guilty of the crimes charged" and that it was to consider certain evidence "only in the case against [Sandstrom], and not in the case against" Eye. Prior to deliberations, the district court reminded the jury that it must "[k]eep in mind that [it] must give separate consideration to the evidence about each individual defendant" and that "[e]ach defendant is entitled to be treated separately, and [the jury] must return a verdict for each defendant." The district court also informed the jury that counsels' statements and arguments were not evidence.
Therefore, we hold that the district court did not abuse its discretion in denying the motions to sever on the basis of mutually antagonistic defenses.
2. Alleged Bruton Violation
During trial, the district court permitted Detective Matthew Williams and Detective Robert Blehm of the Kansas City, Missouri Police Department to read statements obtained from Sandstrom into the record. Prior to their testimony, the government had provided the district court and Eye with redacted statements. Eye objected to introduction of the redacted statements, arguing that the statements left the jury with little doubt that Eye was the person whose name was redacted in violation of Bruton v. United States, 391 U.S. 123 (1968). The district court overruled Eye's objection, convinced that appropriate jury instructions would avoid unfair prejudice.
Eye objected again before Detective Williams read the first statement to the jury. Prior to Detective Williams reading the statement, the district court gave ...