vs.

l,	-,,

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO. 97-3022 WMKC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

BRYAN E. SHEPPARD

Defendant-Appellant

		APPEAL FROM THE UNITED STATES DISTRICT COURT
	I	FOR THE WESTERN DISTRICT OF MISSOURI

Appellant Bryan E. Sheppard's Brief

John P. O'Connor
• Twelve Wyandotte Plaza
120 W. 12th Street, Suite 1300 Kansas City, Mo. 64105 (816) 471-7000

Attorney for Bryan E. Sheppard

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SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT

Bryan Sheppard and four co-defendants were charged with violating Title 18, United States Code §844(i). All defendants plead not guilty to the indictment and after several pre-trial hearings, the case proceeded to trial before a jury in the Western District of Missouri. At the conclusion of the trial, all defendants were convicted. All defendants waived jury sentencing and the case was continued to allow preparation of Pre-Sentence Investigation Reports.
After a lengthy sentencing hearing, the Court denied all defendant's motions and imposed a sentence of life imprisonment on all five defendants. All defendants filed timely notices of appeal, and all appeals have been consolidated before this Court.
These appeals present several important issues for review. Mr. Sheppard asserts the District Court abused its discretion in not granting him a severance from his co-defendants, as the government's method of proof violated the rule announced in Bruton some 500 times. In addition, this appeal presents issues regarding the applicable statute of limitations and pre-indictment delay. Oral argument is necessary to fully probe these important issues, and defendant requests this Honorable Court grant oral argument, allowing him thirty minutes to present his case, with equal time allotted to the government.

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V. THE DISTRICT COURT ERRED WHEN IT, IN VIOLATION OF THE
JENCKS ACT AND RULE 26.2 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE, REQUIRED DEFENDANT TO PROVIDE THE GOVERN-
MENT PRIOR TO TRIAL, WITNESS STATEMENTS OBTAINED FROM
GOVERNMENT WITNESSES, WHEN DEFENDANT ONLY INTENDED
ON USING THE STATEMENTS FOR IMPEACHMENT, AND HAD NO
INTENTION OF CALLING THOSE WITNESSES IN HIS CASE 	43

VI. THE DISTRICT COURT LIMITED DEFENDANT'S CONSTITUTIONAL
RIGHT OF CONFRONTATION AND CROSS EXAMINATION MANDATING
A NEW TRIAL.	48

VII. THE DISTRICT COURT ERRED IN ALLOWING THE GOVERNMENT
TO ADMIT EVIDENCE OF UNCHARGED MISCONDUCT AS THAT
EVIDENCE WAS PREJUDICIAL AND DENIED DEFENDANT A FAIR
TRIAL ................. .. : ..................................... 51

CONCLUSION ................. ...... 	. 	54

Certificate of Service	•	55

Addendum
Judgment and Commitment Order

The Court ruled both witness lists filed by counsel complied with the Omnibus Order and found the may verses intend language was not determinative. (1-281) After that ruling, counsel filed a Writ of Mandamus with this Court, requesting it to vacate the district court's Order requiring production of the statements. This Court denied that Writ, and the statements were given to the government. (2-91,493)
After pre-trial proceedings, the case proceeded to trial before a jury in the Western District of Missouri. At the conclusion of the evidence, the jury returned a verdict convicting all defendants. Prior to sentencing defendants filed a Joint Sentencing Memorandum arguing that the arson guidelines should apply to this case instead of the first degree murder guidelines recommended by probation. (R358.359) That argument was made in open court during the sentencing proceeding and was denied by the district court. The Court then sentenced all defendants to incarceration for the rest of their natural lives and imposed restitution in the amount of $536,000. (Addendum-I).
II. Statement of Facts

A. Introduction

Bryan Sheppard was charged in August 1989, with six counts of homicide Jackson County Circuit Court stemming out of this explosion. Those charges were primarily based on the statements of jail house informants, and were dismissed after Bryan passed a polygraph test and the state determined it had insufficient evidence to

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proceed with the prosecution. (2-364)2

Similarly, the majority of the government's witnesses against Bryan consisted of jail house informants, who claimed to have heard some type of incriminating admission from Bryan during some point in their incarceration. The majority of these witnesses told conflicting accounts of Bryan's alleged actions the night of the explosion, and some of the witnesses were rewarded by the government for their testimony by reductions in their sentences.
Perhaps the witness who received the most benefit from the government for his

alleged knowledge was Glen Shepard.3 Shepard, had seventeen prior felony
	•	(7-1317)
conviction, and had been jail almost his entire adult life		Those convictions

included, burglary, stealing, carrying a concealed weapon, interstate transportation of stolen property, involuntary manslaughter, tampering, and 7 convictions relating to narcotics offenses. (7-1317-1320) Most recently, Shepard had been convicted of possession with intent to distribute; possession with intent to sell; two counts of possession of controlled substance, possession of burglar tools and, possession of drug paraphernalia. Shepard was given sentences of 13 years and 12 years to run consecutively, for a total of 25 years imprisonment. However, the Court suspended execution of those sentences and placed him on probation.
Sheppard testified that in 1992, he saw Frank Sheppard walking down the road

2Bryan Sheppard incorporates herein by reference the statement of the case contained in Skip Sheppard's brief as it relates to the site, the explosion and the investigation.

3Glenn Sheppard was no relation to the Sheppards on trial in this case.

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and stopped to give him a ride. Frank asked :him to drop him off at an apartment complex where his nephew Bryan was. Shepard accompanied Frank into the apartment and saw Bryan drunk and very upset. According to Shepard, Bryan said he could not live with himself because of the firemen's death, at which point Frank told him to shut up. (7-1325)
On cross-examination, Shepard admitted the first time ATF interviewed him he did not provide any information about Bryan. (7-1348) Subsequently, Shepard was taken before a grand jury and refused to testify. Agent True transported Shepard from the grand jury back to jail that day. True was very upset with Sheppard for his refusal to testify and remained him about.his pending gun charge in Blue Springs; Missouri and the sentence that it would carry if it was transferred to federal court. Agent True also told Sheppard he would be called again before the grand jury and if he again refused to testify, he would be given immunity• (7-1350)
When he returned to jail, Shepard contacted an attorney who subsequently contacted True for another interview. This time, Shepard provided the agents more information. (7-1352) Sheppard was again brought before a grand jury and this time testified. After his testimony, agent True appeared at his sentencing in Clay County, Missouri and testified on Shepard's behalf. True told the court that Shepard's cooperation on this case was substantial. At the conclusion of the sentencing hearing, Shepard was sentenced to probation.
Brian Attebury, who claimed to only have one misdemeanor conviction, met Bryan when they were both incarcerated in the Cass County jail in February 1989• (11-

2022) Attebury claimed during that month he had four or five conversations with Bryan, during which Bryan allegedly admitted his involvement in the explosion. (111-2022). Attebury told the jury Bryan admitted being at the site trying to break into a trailer with a crow bar so he could steal dynamite. (11-2023) While trying to gain access to the trailer, Bryan saw a security guard coming and someone suggested starting a fire as a diversion. A fire was started and the guard went to the area of the fire instead of continuing on to the trailer. At this point Bryan fled the site on a bicycle and climbed through his bedroom window. Attebury claimed Bryan told him he was in bed by the time the explosion occurred. (11-2024)
Attebury admitted to having read newspaper accounts of the explosion and the ensuing investigation. (11-2035) Attebury also supplied yet another motive for the fire when he claimed Bryan told him an older gentlemen would pay him $500.00 to take dynamite from the trailer. (11-2023) Not one other government witness testified to this alleged motive for the fire.
During cross-examination, counsel attempted to elicit the fact that Attebury had four misdemeanor convictions, not just one as he testified to on direct, and the fact that he only called the ATF with his alleged information, after he committed a burglary and threatened a witness. (11-2027) At the beginning Of that cross-examination the court not the government, objected and a bench conference occurred.
During that conference, counsel argued this evidence" goes right to the heart of cross-examination," and provided the court with records reflecting the disposition of the
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witnesses' charges. (11-2027) After briefly reviewing those records the Court sustained

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its own objection. (11-2027) Counsel, asked the court to reconsider its ruling, reciting

the following facts regarding Attebury's motive for providing information in this case: [In] 95. He called the ATF and he said I have information for you about this case. And they have just put him up and said no promises and he is just here out of the goodness of his heart and he had no intention when he called ATF. Well on 2-15-95 he called the residence of the person who he committed the first degree burglary and threatened to kill her if she testified and threatened to pay her off with a $500 bribe. The authorities found out about his phone call on the 15th. Then on the 18th he calls the ATF. And on the 1st of March he is indicted with the burglary and for the tampering with the witness. And it goes to his motive. It goes to his motive to show why he was coming forward. He wasn't coming forward out of the goodness of his heart. And he knew he was going to get in trouble and he was calling ATF to get out of trouble and I think it goes to his interest.

(11-2028) The government responded that Attebury has never been charged or

convicted of either of those crimes, which prompted counsel to provide the following

additional facts regarding Attebury's motive:

Here's what happened, Judge. What happened was he started cooperating and then his case got reduced to tampering in the second degree. I talked with Mr. Hassler who told me, who represented him, that Mr. True, or someone ion behalf of the government, had been talking with him and telling him they were going to help him with that case. And I want to ask him about that.

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(11-2029) Again the court sustained its own objection ruling the evidence was "speculative". When the defense pointed out that the attempted cross-examination goes to an issue raised by the government on direct examination, that the witness claimed to only. have one misdemeanor conviction, when in fact he has four, the court again denied the questioning. (11-2029)
Wesley Romans also met Bryan in the Cass County jail. Romans claimed he heard Bryan talk to fellow inmates on ten separate occasions about the explosion, however Romans account of Bryan's alleged admissions differed substantially from that of Attebury. (11-2095-96) According to Romans, Bryan stated he drove to the site with other individuals to steal dynamite and explosives. However, Bryan consistently claimed he was sitting in the car when the trailer was set on fire. (11-2096) Romans was a prime example of how the timing of the reward and the airing of Unsolved Mysteries influenced the ATF in this investigation. Romans admitted he did not come forward with this information until he Watched Unsolved Mysteries, saw a reward poster in town and heard about the reward on televison. (11-2101)
• Frank Gile claimed he heard admissions from Bryan regarding this case in 1991-92 but did not come forward until his probation for auto theft was revoked in 1995, and he wound up in the Jackson County jail. Once in jail, Gile contacted ATF, and provided an affidavit which stated "1 am providing this information at this time for the sole purpose of potentially reducing my prison time." (12-2269) According to Gile, Richard Brown told him he went to the site to steal and on the way out "they" ran out of gas. (12-2255) After he got gas "they" started a pickup truck on fire that was parked next to

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a trailer. (12-2255). Gile claimed Bryan was present during this conversation, admitted he was at the site, but said nothing else. (11-2259) Gile admitted agent True was going to write a letter to the parole board on his behalf in exchange for his testimony. (12-

Shawn Furrell, a former school mate of Bryan's, who claimed he had a "photographic memory," was unable to point out Bryan in the courtroom, even though Bryan was Standing. (8-1648-56) Furrell claimed that in the fall of 1989, he went to Bryan's house and sold him marihuana. (8-1650-51) During this purported sale, Bryan allegedly told Furrell he was at the site to steal blasting caps and was supposed to burn the trailer to destroy the evidence. (8-1652) Furrell claimed Bryan said he was unaware the trailer contained explosives and never intended in causing the explosion. (8-1653)
On cross-examination, Furrell was asked if he had ever been arrested or charged with narcotics trafficking. Furell replied he hadn't and that he was not worried about his confession to a crime during this testimony, as AUSA Becker advised him the statute of limitations had run. (8-1657) Also during cross Furrell was adamant his conversation with Bryan occurred sometime between September and December of 1989.4 (1656) When counsel attempted to demonstrate this was impossible, as Bryan Sheppard was incarcerated during that time, the government objected and the following occurred at the bench:
O'CONNOR:... the point is if they knew he was in jail, then why would
they offer this witness who obviously says, can't even.identify him. It's

4The report of his interview with law enforcement states the conversation occurred in October of 1989.

argumentative, but what I'm saying is that if they knew he was in jail from
July to September and this guy is saying that he saw him in the fall -19

BECKER: Two things. One, I thought the kid was going to make an ID of him. But secondly, I missed the date. so he has not -- he's obviously not been prepared on this date, and you've got him. I mean, you can offer it as evidence later on that the guy could never have been seen at home during that time.

(8-1660-61) At no time did the government ever inform the jury that this witness had been mistaken or lied and this conversation could never have occurred as testified. In fact it was not until weeks later that the defense was allowed to introduce jail records regarding Bryan's dates of incarceration.
Carrie Neighbors, another school mate of Bryan's testified she attended a party at Swope Park where she allegedly overheard a conversation between Bryan and Richard Brown regarding this crime. Although, Neighbors could not remember who said what, she was allowed to testify over objection that "they" went there to steal batteries, and "they" set a fire to cover their tracks and "they" saw a security guard and ran. (11-1999-2000) Neighbors testified a few weeks later she went to a party at Shannon Newcombs' house and again overheard a conversation between Richard and Bryan. (11-2000) This time she claimed she heard them say "they went there to steal batteries," and "they set the fire to cover their tracks." (11-2000)Although these parties occurred in April or May of 1989, she never told anyone until 1995.(11-2003) Neighbors testified neither ever said the fire was a diversion, nor that they went tO steal tools, torches, transits or copper.(11-2013) Nor did they ever talk about setting a pick up truck on fire. (t 1-2011) Neighbors admitted being under the influence of marihuana

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and alcohol each time she over heard these conversations. (11-2000-21) Neighbors further testified that both Bryan and Richard Were drunk when they made these statements. Finally, Neighbors admitted when she testified at the grand jury she was unable to remember what anyone said, but prior to her testimony in court she reviewed a report prepared by Labor Investigator Schram. (11-2018)
Shannon Newcomb testified and contradicted Neghbors recollection of these conversations. According to Newcomb, at the second party, Richard said while he and Bryan were at the site, they were observed by two security guards, so they set a pick up on fire and fled into the woods. (13-2450-51) Newcomb testified that Richard did most of the talking, with Bryan only injecting a comment or two. (13-2451) When questioned about her statement to ATF that they had gone to the site to steal dynamite, Newcomb told the agent that because that is what everyone in the neighberhood thought, however Newcomb admitted she did not remember "if either one of them specifically said dynamite," she just assumed that. (13-2460) Finally, Newcomb admitted being at the Swope Park party, but had no recollection of what, if anything, was said. (13-2466)
Kevin Smith, a three time convicted felon, claimed he was contacted by ATF agents after his name came up on "Unsolved Mysteries." (11-2040) Smith testified he had a conversation with Bryan shortly after Bryan's case was dismissed by the state authorities. (11-2043) According to Smith, Bryan told him his case was dismissed because they did not have enough evidence. Smith claimed Bryan admitted to him he set a fire as a diversion in order to steal explosives. (11-2043) However, Bryan never mentioned a trailer, or how Bryan got to the site. (11-2043, 2048). Smith admitted he

did see a reward poster in the correctional facility in which be was housed prior to giving the authorities this information. (11-2051) Further, Smith stated Bryan was stealing copper and metals. (11-2052) Finally, Smith admitted to illegal drug use and drinking when these conversations occurred. (11-2054)
Pam Harth, whose son was friends with Richard and Bryan, claimed they came to her house one month after the explosion. Both sat in the living room while she mopped her kitchen floor. According to Harth, Richard did all of the talking and allegedly told her they set the fire on the hill because they went to burglarize a shed and steal tools. (12-2197-99) In fact, Harth stated they did steal tools that night. (12-Harth admitted she heard about "50 million" rumors in the neighborhood about what happened at the site. (12-2213) Harth also had driven by the site numerous times and had seen the trailers. (12-2214) Harth did not testify that Richard ever said "1" did this or that Bryan ever confirmed or •acknowledged that he and Richard in fact set the fire.
Fern Ayers, who's son also was friends with Richard and Bryan, testified to a conversation she allegedly had with Richard a year after the explosion in Bryan's presence. (12-2237-38, 2249) According to Ayers, Richard asked her if she would like to see some of the stuff from the site. Richard then went to open the trunk of Bryan's car and Bryan slammed it shut. (12-2239) Ayers also admitted there was a lot of talk in the neighborhood about the explosion, in fact Christopher Rainer also offered to sell her items he stole the night of the explosion. (12-2246-48) Finally, Ayres admitted when she suggested to Richard that he had in fact set the fire, Richard denied it.
Christine Mall claimed she went to Bryan's house with her boyfriend John•

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McGovern. (11-2060-61) While there, she claimed to have overheard Bryan say he tried to blow up a truck with dynamite to collect insurance money. (11-2063) Mall stated Bryan claimed he went to the site to blow up Darlene's truck for the money. (11-2063) John McGovern testified and acknowledged going to the party at Brian's with Mall. (18-3394) However, McGovern stated Bryan never made any admissions nor did he ever discuss any purported admissions of Bryan with Mall. (18-3395)
Travis Small who was currently serving time for conspiracy to possess marihuana, and transporting cocaine testified for the government. (12-2164-65) Small, over objection, testified that in March of 1989 Bryan paged him wanting to buy some cocaine. (12-2167) Small responded to Bryan's location and claimed Bryan was acting paranoid and told him the police were all over the neighborhood. Small claimed when
he asked Bryan what he meant, Bryan stated :"1 f- 	up. Some people got killed." Upon

further questioning, Small claimed Bryan stated "the explosion on the highway." (12-2171)
On cross-examination, Small admitted signing an affidavit stating: "1 do not know the Sheppards except I have heard of Skip Sheppard but I never met him. They have never told me anything about the firemen because I have never met them." (12-2175) That affidavit was signed on February 9, 1995. Subsequently, on August 5, 1996, Small was charged in a federal indictment with conspiracy to possess with intent to distribute methamphetamine, possession with intent to distribute marihuana and attempted possession of marihuana. (12-2177) That indictment carried a maximum punishment of 40 years and fines up to 2 million dollars. (12-2179) After Small retained

an attorney on the charges, negotiations were begun with the United States Attorney's Office. (12-2179) Subsequently, on November 25, 1996, Small met with ATF agent True and told him he knew Bryan, (12-2180) Small testified he hopes he will not be prosecuted for perjury for signing a false affidavit. (12-2182) Further, Small admitted seeing Bryan 25 times between 1986 and 1989, but only one time did Bryan ever make incriminating statements. (12-2187-87)
Kimberly Finch testified that she knows Bryan, Skip and Frank. She recalled an incident where she went with her sister-in-law to Richard's house and over heard Richard and Bryan talking about the "firefighter thing."(2429) Finch testified Richard was talking about a shed and a trailer and wiping off fingerprints when Bryan told him to shut up. At this point, according to Finch Richard told Bryan "... well you're the one that said you were going, to catch that lock on fire, set that lock on fire so they could get in the and see what was in there." (2430-331) Finch claimed Bryan said "he was fed up with my nephew running his mouth, telling everything and Bryan told him straight up that he wasn't even there so how in the hell is he supposed to know anything, quit running his mouth." (2436) Detective Robert Guffey testified that he interviewed Finch. (18-3391) According to Guffey during that interview Finch never told him anything about Bryan admitting to being at the scene and wiping off fingerprints (18-3391) nor did Finch tell him that Richard and Bryan were arguing and Bryan telling Richard to keep his mouth shut. (18-3391)
Margaret Weaver testified that on the night of the explosion she walked to a 7-

Eleven at 79th and Paseo;5 that she knew Bryan Sheppard and Richard Brown; that she saw Richard and Bryan standing next to Bryan's black car; that there was someone else with them she did not know who it might have been; and that they were talking about going to a party. (14-2480-2485)..She saw Richard and Bryan about 1:00 or 2:00 a.m. (14-2489). Bryan was wearing jeans and a T-shirt (2487). She remembered it was not very cold because she walked. (14-2488). The very next witness Carolee Smith testified it was a cold night, (14-2512) and in opening statement the government stated it was cold. (2-355)
Stephen Morales, a newspaper carrier, testified he was traveling north on 71 Highway with his boss Bruce Trammel, to get his papers; at about 1"15 to 1:45 in the morning. (14-2560) En route he saw Bryan Sheppard with Randy Bohrn, Richard Brown, Frank Sheppard and another individual he did not know by Bohrn's house (14-2560-62). Morales said his papers were not ready for pickup at that time, so he went back south on 71 at about 2:00 or 2:15 a.m. and saw a pickup on the side of the road on 71 Highway. Later at about 3:15 or 3:30 he and his boss traveled back north after picking up. another person and on the way he saw the security guards shining a spotlight up on the hill (14-2563-64). Morales said he and his boss then picked up the papers and were in Willow Creek when the first blast went off. (2566). Morales then testified about admissions that Bryan Sheppard made to him while they were in jail together as to how the fires were started (14-2569-2570). Morales claimed Bryan said he was up thereto steal batteries, tools and construction equipment. (14-2570) Bryan

This is not the 7'Eleven located on 71 highway near the blast site. 17

allegedly told him they had a "lookout" who watched for security and the "lookout" set a truck on fire to draw attention away from the hill. (14-25"70) The "lookout" then returned and "they" set a trailer on fire and left. (14-2570)
Morales stated he never received any assistance from law enforcement in exchange for his information. (14-2171) However, on cross-examination he acknowledged that his Cass County bond was reduced from $5,000 cash to a signature bond. Morales claimed he didn't know if the government directly or indirectly assisted him in getting that bond reduction. (14-2615) However, Morales admitted an ATF agent told him he spoke to someone regarding his bond. (14-2616) When further cross-examination was attempted regarding the bond reduction and a second bond reduction in Jackson County, the government objected and a lengthy bench conference ensued.

•	(14-2617-24) During that bench conference the government constantly denied knowing who spoke to the Cass and Jackson county authorities, claiming "if [Morales] doesn't

know about it, then it doesn't matter what Dave True did for him... " (14-2620)

Finally, Morales claimed to have seen the security guards vehicle, which he

described as either a pickup or bronco, with an emblem on the side. (14-2650) Bruce

Trammel testified he never was in the same vehicle after the papers were delivered. (18-3338) Further, Trammel testified he and Morales never went together to pick up another employee. (18-3338)
Kimberly Archer, an inmate in the Jackson County Jail, testified next. (15-2832-

2852). Archer, a drug abuser, dated Richard Brown's brother, Carl Brown (15-2833).

She testified that at the time of the explosion Carl Brown was living in an apartment
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near Bannister Mail. (15-2836) Archer stated that she was at his apartment that night and when she woke up the next morning Richard Brown was at the door. She looked out the window and saw "an old black truck". Carl let them Richard and Bryan in and the three talked in the front room. During that conversation she overheard Richard say "that there was an explosion, there was a fire". Later Carl took her to the doctor which was confirmed by medical records. (15-2837-2840). She said the three men talked for about ½ hour,• and when she eventually went into the room, she smelled no gasoline or smoke. Archer admitted that from the conversation she Could not tell whether they had been involved or were merely telling Carl all about what had happened (15-2845-2846).6 Archer further testified she never heard Bryan say anything. (15-2844) Nor did she ever say they set the fire, were together at the time of the explosion or caused the explosion. (15-2647)
Karen Baird, a massage therapist who has known Bryan for several years testified. (15-2943-44) Baird claimed Bryan and Richard came to her home between 7:30 and 8:00 the morning of the explosion. (15-2945) Bryan asked her to massage his neck, and Baird claimed she noticed his skin was sandy and he smelled of smoke and gasoline. (15-2946) When she questioned Bryan about why his neck wass0 tight he said "If you'd been through what I've been though, you'd be tight too." (15-2947) During this massage Richard stood in the doorway and she noticed nothing unusual about his

6 This conversation, the very morning of the blast, was of course with Brown's brother as
opposed to a third party and he was unaware that Archer was listening. During this serious
• conversation with his brother there was no attempt to take credit for it, or boast or brag about tr. by either he or Bryan Sheppard.

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appearance. (15-2948)

Baird also claimed Bryan called her when he was incarcerated in the Clay County jail. These phone conversations were three way conversations between Bryan, Baird and Baird's friend Kathy Marburger. (15-2954) During one of those conversations, Baird claimed Bryan told her when the explosion occurred he ran across the road and dove into a ditch. (15-2954) Baird admitted being questioned by the police on October 3, 1989 and telling them no one ever admitted their involvement in this crime. (15-2974). In fact, when Baird directly asked Bryan if he did it he said: "F--- no." (15-2979)
Kathy Marburger has known Bryan and Richard since 1988. Marburger testified that on the morning of the explosion she called Baird at 8:00 a.m. and Baird told her Richard and Bryan were there. (15-3025) Marburger also recalled a three way conversation with Baird and Bryan however, she claimed Bryan never mentioned running across the road and diving into a ditch. (15-3037) In fact, contrary to Baird, Marburger said during the conversation Bryan stated: "1 was there, I helped start the • fire, but I did not mean to kill the firemen." (15-3028). Marburger testified she always
called the police and spoke to Detectives Fraise and Zinn whenever Bryan would make an admission. (15-3032) Marburger also admitted to having heard a lot of rumors regarding this explosion.
Detective Fraise testified and stated Marburger never told him she was a party to a three way telephone conversation when Bryan made admissions regarding this crime. (18-3346-47) Moreover, Fraise testified no police report exists containing this

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information. (18-3361)

Detective Zinn also testified to his contacts with Marburger during this

nvestigation. Zinn also testified that Marburger never told him she was party to a three way telephone conversation in which Bryan made admissions. (18-3369)
During the defense presentation Bryan called Fredrick Martindale to the stand. Martindale admitted that in 1991 he was taken to police headquarters and fully confessed to this crime. (18-3310-11) During his confession, Martindale told police he went to the site to steal explosives. (18-3311) Martindale told police that when he was unsuccessful in stealing the explosives he set the trailer on fire. (18-3312) After giving

the confession, Martindale was booked for homicide and kept in jail overnight. (18-

3313) The next morning Martindale was released and never charged with this crime.

	(18-3326) During the direct examination of Martindale, the defense requested

permission to play the videotape of Martindale's confession, which was denied. (18-3322, 3330) However, the transcript of Martindale's confession was admitted for
      purposes of appellate review and is contained in Bryan Sheppard's Appendix. (BSA-60)
	Summary  Argument
	of

Defendant argues this case should be dismissed as the prosecution was barred by the statute of limitations and pre-indictment delay. In the alternative, defendant argued the manner in which the trial was conducted violated his rights under the rule

announced in Bruton some 500 times. Moreover, the government adduced insufficient

evidence to sustain the conviction, mandating a judgment of acquittal. Finally,

defendant asserts the Court erred in not allowing him to present the fact that he passed

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abuse of discretion standard. 1990).

		a lie detector test in 1989, regarding his involvement in this case, and in forcing him to
	
		provide the government copies of his witness statements prior to trial.
		I. THE DISTRICT COURT ERRED IN DENYING THE ADMISSION OF
		DEFENDANT'S POLYGRAPH TEST RESULTS.

A. Standard of Review

This Court reviews the District Court's decision to exclude evidence under the United States v. Shyres, 898 F.2d 647,656(8th Cir.

B. Discussion

Bryan Sheppard was charged with six counts of homicide in 1989 in connection with that case. While in jail awaiting trial on these charges he took a polygraph test regarding his participation in the crime. Don Dunlap, a retired polygraphist from the KCMO Police Department, who performed the polygraph testing, stated Bryan did not show deception when he answered the following questions:
1. Between three and four a.m. last November 29 were you at the 87th and 71 highway construction site?
Answer, no.

2. Do you know for sure who set that November 29th fire at 87th and 71 highway?
Answer, no.

3. Last November 29th did you set that fire at the 87th and 71 highway construction site?
Answer, no.

4. Did you take any part in setting that 87~h and 71 highway construction
fire?
Answer, no.

,

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(BSA 5).

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5. Were you with the person when he set that 87th and 71 highway construction fire?
Answer, no.

(BSA) Prior to trial, defendant sought to introduce this polygraph result, which was

denied by the court. Defendant asserts the court erred in not allowing the admission of

his polygraph test. As the district court recognized:

The evidence in this case was not strong. There were two fires set on November 29, 1988, only one of which was charged in this case. No physical evidence linked any specific defendant to the scene, and there were no eyewitnesses to the case. Rather the government's case was built primarily around Darlene Edwards' confession, and numerous admissions against interest, referred to throughout trial as "confessions," made by other defendants to various testifying witnesses. Many of these confessions required redaction, and many were inconsistent in their explanation of various details. Further, while witnesses testified that each defendant confessed to being part of a group present at the setting of a tire, it was not clear from the confessions that all defendants knowingly participated in the actual setting of the fire which resulted in the explosion, as opposed to the allegedly initial fire of a security guard's truck, and the extent of various defendants' participation, except Darlene Edwards, was largely left undefined.

(BSA-Order overruling Motion for New Trial, p. 6-7, A) The trial court, went on to find

that the government made no attempt to define any defendant's role in the offense

during closing argument. (A p. n. 12)

Notwithstanding, the trial court's expressed concern with the quantity of the

evidence in this case, the court denied the Motion for New Trial because, "the law

imposes a significant constraint upon this Court's authority to overturn a jury verdict."

Defendant asserts that the fact the evidence of guilt was weak, coupled with the

fact that the majority of the government's witness told completely conflicting accounts of

'case.

24

how this crime was supposedly perpetrated, the court should have allowed evidence that he took and passed a polygraph test regarding his participation in this crime. In fact, three out of the five defendant's passed polygraph tests in connection with this•

The subject of the admission of polygraph test results was discussed at a pretrial hearing, where the Court ruled that the results of polygraph tests would not be admitted into evidence, irrespective of any showing that might be made under . Daubbert v. Merrill Dow Pharmaceuticals, 509U.S. 579 (1993). Instead the court ruled that polygraph test results would be too prejudicial to the government.
The issue of the admissibility of polygraph test results is unusually significant in this case because of the nature of the evidence against the defendants. More than fifty witnesses testified to different extra-judicial statements allegedly made by the defendants. However, these extra-judicial statements conflicted significantly, not onlY as to the details of what the defendants purportedly admitted, but also with the uncontroverted fact that nothing was ever stolen from this construction site. Moreover, the majority of the government's witnesses described structures that were never present on the site, causes of the fire that were impossible, and scenarios that simply could not have happened.
Thus, credibility of the government witnesses and their "stories" was of paramount importance in this case. The admission of polygraph testing would have lent some indicia of reliability to the proceedings, which was totally lacking.
In United States. v. Cordoba, 95-50492 (9th Cir., 1997), the Court, recognizing

25

that the Circuit had always expressed hostility to the admission of unstipulated polygraph evidence, held that hostility was inconsistent with the "flexible inquiry" assigned to the trial judge by the Supreme Court's decision in Daubert.
In Daubert, the Court stated that "[t]he inquiry envisioned by Rule 702 is, a flexible one" and that "Rule 702... assign[s] to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Id. at 594, 597; 113 S. Ct. 2797, 2799.
The only other circuit that has squarely addressed this issue, has also held that a per se rule excluding expert polygraph evidence was overruled by Daubert. See United States v. Posado, 57 F.3d 428, 434 (5th Cir. 1995).
Defendant asserts the admission of polygraph test results in this case would have assisted the trier of fact, and therefore, the district court erred in denying its admission, mandating a New Trial.
I1. THE TRIAL COURT ERRED IN FAILING TO GRANT A SEVERANCE, AS THE JOINT TRIAL RESULTED IN NUMEROUS VIOLATIONS OF THE RULE ANNOUNCED IN BRUTON V. UNITED STATES, IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW, AND RENDERED HIS TRIAL FUNDAMENTALLY UNFAIR.

A. Standard of Review

The decision of whether or not to grant a severance lies within the discretion of the district court, and will not be disturbed absent an abuse of that discretion, resulting in clear prejudice. United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982). In the case at bar, the district court abused its discretion in failing to grant a severance, resulting in clear and severe prejudice to defendant, warranting a new trial in which he

I
I

|
is tried separately.

B.	Discussion

In	Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that

the admission of a co-defendant's confession at a joint trial violates the defendant's constitutional rights if the confession also incriminates the defendant. The Bruton rule also applies to testimony by a witness concerning a co-defendant's out of court statement. United States v. Schmick, 904 F.2d 936, 943 (5th Cir. 1990). Three rules can be gleaned from Bruton and its progeny regarding the admission of a co-defendant's confession in a joint trial situation:
(1) the defendant must be afforded a fair trial,

(2) in some contexts, a joint trial may prevent a defendant from receiving
a fair trial, and,

(3) in some contexts limiting instructions may not negate the prejudice
that arises in a joint trial situation.

Bruton at 135-36.

In Richardson v. Marsh, 481 U.S. 200 (1987), the Court held that the Bruton rule is not violated merely because other evidence allows the jury to infer a link between a co-defendant's redacted confession and,the defendant, provided the redacted confession contains no reference to the defendant. However, in Richardson,
the redacted confession did not contain neutral pronouns as a replacements for the defendant's name, rather the redaction eliminated all references to the involvement of

any other person. The Richardson court left unresolved the question of whether "a confession in which the defendant's name has been replaced with a symbol or neutral

7

pronoun," would violate the Sixth Amendment, if other evidence allowed the jury to infer who was the "someone." 481 U.S. at 211 n.5.7
This Court has, on several occasions, Considered the admissibility of a co-defendant's confession in which the defendant's name has been either removed or replaced with a neutral pronoun. In United States v. Garcia, 836 F.2d 385 (8th Cir. 1987), this court held the use of the word "someone" "did not draw attention to the fact that the prosecution had the name available to it and purposely omitted it from the statement. "Id, at 391.
In United States v. Long, 900 F.2d 1270, 1280 (8th Cir. 1990), this Court held the substitution of the defendant's name with the word "someone" was improper because further testimony "led the jury straight to the conclusion that someone referred to [the] defendant." I.d. at 1280.
In United States v. Jones, 101 F.3d 1263 (8th Cir. 1996), this Court held the
• single reference to "we" and the several references to "they" could have referred to anyone or any group of individuals. In Jones this Court based its decision that no Bruton error occurred partly because the government carefully applied the confession only to the maker and in closing argument did not include the defendant in any discussion of the co-defendant's confession. Thus, this Court concluded that the use of

7Redaction has been vigorously criticized because it often is no great feat for a juror in a joint trial to discern the identity of the mysterious "Blank" or "Mr. X" referred to in the co-defendant's confession. 28 DePaulLRev at 1165 n. i5. Some courts have concluded that redaction cannot take the place of severance when the redacted statement still creates an inevitable association with the defendant: United States v. Van Hemelryck, 945 F.2d 1493 ( 11th Cir. 1991); United States i,. Petit, 841 F.2d 1546 (11 a, Cir. 11 1988); United States v. Washington, 952 F.2d 1402 (D.C. Cir. 1991).

28

"they" and "someone" do not violate Bruton where the manner of presenting the confession and the context do[es] not lead the jury directly to the defendant." Id. at 1270.
In the case at bar, 55 witnesses testified to admissions purportedly made by one or more of the five defendants, using the "neutral pronouns" "they" "them" or "we" some 500 times.8 In fact, on several occasions the government itself used the term "they" when questioning a witness (1532) The government began its case, in opening statement using the word "they": "What Frank Sheppard said to all these individuals is that he did it with other people. They went there to steal, they set the rims... "(2-359). Finally, during closing argument the government argued the jury must consider the witnesses statements as a whole: "they are talking about the same thing these people keep talking about, the gasoline, the QuikTrip, that night what they are there to steal... they said, we went up there to steal, we set this fire and we got out of there... These defendants didn't just tell one person... They said, We did it. They consistently said We did it over the years. We went up there to steal and we set this fire." (21-3789,3914-16)
Thus, unlike the precautions the prosecution took in Jones to protect the defendant's constitutional rights, the government in this case "led the jury directly" to all

8Thefollowing page cites are just some examples of the numerous Bruton violations that infected this entire tria1:1079,1103,1155-62,1170,1418,1132,1368,1369,1325,1198,1199, 1198,1208,241,1242,1384,1394,1407,1408,1409,1454,1455,1456,1459,1254,1439,1946, 1946-7, 1839,1842, 1843,1484,1532,1535-7,1572-3,1581-2,1599,1632,1653,1666,1680-82,1732-34,1999,2023,2047,2076,2082-83, 2086, 2088, 2096, 2115, 2116, 2198, 2219, 2259, 2293, 2305,  2360,1386,1397

29

defendants throughout this entire trial. The government's alleged "redaction" simply did not work.
During the trial the court expressed concern about the Bruton problems. (6-1158) In response, the government claimed:
BECKER:... the substitution of a neutral pronoun is an acceptable solution to the dilemma of do we have joint trials or do we have five separate trials. And that is the basis the government has gone for in preparing its witnesses.

(6-1158-63). However, a review of the entire record discloses the government's "solution to the dilemma" was far from acceptable and was in fact unconstitutional.9
The following illustrate some of the numerous Bruton violations that occurred in this case, which prejudiced Defendant and deprived him of a fair trial. Throughout the trial the government told the jury, through witnesses and family tree charts, the family relationship between three of the Defendants; Frank and Skip were brothers and Bryan was their nephew. The government then used that family relationship, through its witness Lorena Deardorff, in violation of Bruton, to incriminate Bryan in an admission

allegedly made by Frank. Deardorff, who worked at a local convenience store, testified to the following conversation she allegedly had with Frank Sheppard after the explosion:
Q. Okay. What did Frank Sheppard tell you next?
A. He said that the person threw the dynamite down, and then there was an explosion, and then a few minutes later there was another explosion, so they got scared and they ran and they took off and went home and

9Space limitations prevent Appellant from outlining each and every Bruton violation however, the following examples.present the most egregious as it relates to this Appellant. Moreover, had Bryan been severed the jury would not have heard any of the following testimony.

	TABLE OF AUTHORITIES
Bruton v. United States, 391 U.S. 123 (1968) 	251 26, 28, 29, 32, 33, 34
California v. Green, 399 U.S. 149, 158 (1970)	"	49
Daubbert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993) •		24, 25
Davis v. Alaska, 415 U.S. 308, 316 (1974) 		49
Donnelly v. DeChristoforo, -416 U.S. 637 (1974) '		36
Douglas v. Alabama, 380 U.S. 415, 418 (1965) 		48
Gigilo v. United States, 405 U.S. 150 (1972) 		36
Homan v. United States, 279 F.2d 767 (8th Cir.),
	cert. denied364 U.S. 866 (1960) .............. ...... .... 	54

Huddleston v. United States, 485 U.S. 681 (1988) 	• 	52

Napue v. Illinois, 360 U.S. 264, 269 (1959) 	36.37
Opper v. United States, 348 U.S. 84 (1954) 	41
Richardson v. Marsh, 481 U.S. 200 (1987) 	26
Sansone v. United States, 344 F.2d 287, 292 (8th Cir. 1964) .. 	41
United States v. Algie, 667 F.2d, 569 (6th Cir. 1982) 	46
United States v. Agurs, 427 U.S. at 103 	36
United States v. Bagley, 473 U.S. at 680 	... 37
United States v. Barham, 595 F.2d 231 (5.= Cir. 1979) 	36
United States v. Barker, 82 F.3d 273, 276 (8t" Cir. 1996) 	51
United States v. Beechum, 582 F.2d 898, 912-913 (CA5 1978) (en banc) 	52
United States v. Ca/dwell, 88 F.3d 522, 524 (8= Cir. 1996) 	48

United States. v. Cordoba, 95-50492 (9th Cir., 1997)		24
United States v. Dardant, 119 F.3d 1322, 1326 (8th Cir. 1997)	"	41
United States v. Darden, 70 F.2d 1507, 1517 (8th Cir. 1995)	41

United States v. Duke, 50 F.3d 571,576 (8th Cir. 1995)		"    35, 43
United States v. Garcia, 836 F.2d 385 (8th Cir. 1987) .... 		27, 33
United States v. G/over, 588 F.2d 876 (2nd Cir. 1978) 		36
United States v. Jones, 101 F.3d (1263 (8th Cir. 1996)	'	27, 28
-United States v. Kaminski, 692 F.2d 505, 522 (8thcir. 1982) 		.25
United States v. LeCompte, 99 F.3d 274, 277 (8th Cir. 1996) 		51
United States v. Long, 900 F.2d 1270, 1980 (8th Cir. 1990) 		27, 32
United States v. Petit, 841 F.2d 1546 (11th Cir. 1988) 		27
United States v. Posado, 57 F.3d 428, (5th Cir. 1995)	~	25
United States v. Roark, 924 F.2d 1426 (8th Cir. 1991) ................. 	52

	United States v. Runge, 593 F.2d 66 (8th Cir.),
	cert. denied, 444 U.S. 859 (1979) 	. 	36

United States v. Sanfilippo, 565 F.2d 176 (5th Cir. 1977)	'	36
	
United States v. Schmick, 904 F.2d 936, 943 (5th Cir. 1990) 		26

United States v. Shyres, 898 F.2d 647, 656 (8th Cir. 1990) 	.. 	22
United Staes v. VanHemelryck, 945 F.2d 1493 (11th Cir. 1991) 			27
United States v. Washington, 952 F.2d 1402 (D.C. Cir. 1991) 			27
United States v. White, 751 F.2d 726, 729 (8th Cir'. 1984) 		"	47
Wong Sun v. United States, 317 U.S. 471,488-89 (1963) 			41

!

vi

OTHER AUTHORITIES

Jencks Act. ..................................... ..... 	43, 46, 47, 48
Federal Rules of Criminal Procedure, Rule 26.2 	46, 47, 48
Title 18, United States Code §844(1) ........ 	. .... 1
Title 18, United States Code §3500 	44, 46, 47, 48
28 DePaul LRev at 1165 n. 15 ......... 	" 	27

vii

PRELIMINARY STATEMENT

• Mr. Sheppard was charged in an indictment with arson, in violation of Title 18, United States Code §844(1).             
The jurisdiction of the district court below was based upon violations of the laws of the United States. The United States District Court for the Western District of Missouri has original jurisdiction over offenses against• the laws of the United States which occur in that district. Title 18, United States Code, §3231. This is a direct appeal, as of right, of Mr. Sheppard's conviction and sentencing in the United States District Court for the Western District of Missouri, Honorable Joseph W. Stevens presiding, to the United States Court of Appeals for the Eighth Circuit, as authorized by Rule 4(b) of the Federal Rules of Appellate Procedure; Title 18 United States• Code §3742 and Title 28, United States Code, §1291.
Final judgment was entered on July 10, 1997. Mr. Sheppard filed a timely Notice of Appeal
STATEMENT OF CONSOLIDATION

This Court has consolidated the appeals of all-co-defendants. Pursuant to Rule 28(i) of the Federal Rules of Appellate Procedure, defendant adopts all arguments and facts included in each of his co-defendants' briefs to the extent they are not inconsistent with the arguments contained herein.

viii

STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. THE DISTRICT COURT ERRED IN DENYING THE ADMISSION OF DEFENDANT'S POLYGRAPH TEST RESULTS.

United States v. Shyres, 898 F.2d 647, 656 (8th Cir. 1990) Daubbert v. Merrill Dow Pharmaceuticals, 509 U oS. 579 (1993) United States v. Cordoba, 95-50492 (9th Cir. 1997)
• United States v. Posado, 57 F.3d 428, 434 (5th Cir. 1995)

II. THE TRIAL COURT ERRED IN FAILING TO GRANT A SEVERANCE, AS
THE JOINT TRIAL RESULTED IN NUMEROUS VIOLATIONS OF THE RULE
ANNOUNCED IN BRUTON v. UNITED STATES, IN VIOLATION OF
DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE
PROCESS OF LAW, AND RENDERED HIS TRIAL FUNDAMENTALLY
UNFAIR.

Bruton v. United States, 391 U.S. 123 (1968)
United States v. Garcia, 836 F.2d 385 (8th Cir. 1987) •	.
United States v. Long, 900 F.2d 1270, 1280 (8th Cir. 1990)
United States v. Jones, 101 F.3d 1263 (8th Cir. 1996)

III. THE GOVERNMENT OBTAINED DEFENDANT'S CONVICTION BY KNOWINGLY, RECKLESSLY, OR NEGLIGENTLY PRESENTING FALSE TESTIMONY TO THE JURY IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONTATION AND DUE PROCESS OF LAW.

Gigilo v. United States, 405 U.S. 150 (1972) •

United States v. Runge, 593 F.2d 66 (8th Cir.), cert. denied, 444 U.S. 859 (1979)

ix

United States v. Sanfilippo, 565 F.2d 176 (5t" Cir. 1977) United States v. Glover, 588 F.2d 876 (2d Cir. 1978)

IV. THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL, AS THE GOVERNMENT FAILED TO ADDUCE SUFFICIENT EVIDENCE TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT, ON VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW.

United States v. Darden, 70 F.2d 1507, 1517 (8th Cir. 1995)

Wong Sun v. United States, 317 U.S. 471,488-89 (1963)

Opper v. United States, 348 U.S. 84 (1954)

Sansone v. United States, 344 F.2d 287, 292 (8= Cir. 1964)

V. THE DISTRICT COURT ERRED WHEN IT, IN VIOLATION OF THE JENCKS
ACT AND RULE 26.20F THE FEDERAL RULES OF CIVIL PROCEDURE,

	REQUIRED DEFENDANT TO PROVIDE THE GOVERNMENT PRIOR TO
	TRIAL, WITNESS STATEMENTS OBTAINED FROM GOVERNMENT

WITNESSES, WHEN DEFENDANT ONLY INTENDED ON USING THE STATEMENTS FOR IMPEACHMENT, AND HAD NO INTENTION OF CALLING THOSE WITNESSES IN HIS CASE.

United States v. Algie, 667 F.2d 569 (6t" Cir. 1982)

United States v. White, 751 F.2d 726, 729 (8th Cir. 1984)

VI. THE DISTRICT COURT LIMITED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION AND CROSS EXAMINATION MANDATING A NEW TRIAL.               I
United States v. Caldwell, 88 F.3d 522, 524 (8th Cir. 1996)

Douglas v. Alabama, 380 U.S. 415, 418 (1965)

Davis v. Alaska, 415 U.S. 308,316 (.1974)

California v. Green, 399 U.S. 149, 158 (1970)

VII. THE DISTRICT COURT ERRED IN ALLOWING THE GOVERNMENT TO ADMIT EVIDENCE OF UNCHARGED MISCONDUCT AS THAT EVIDENCE WAS PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.

United States v. LeCompte,99 F.3d 274, 277 (8th Cir. 1996)

United States v. Barker, 82 F.3d 273, .276'(8t" Cir. 1996)

Huddleston v. United States, 485 U.S. 681 (1988)
L
United States v. Roark, 924 F.2d 1426 (8th Cir. 1991)

STATEMENT OF THE CASE

I. Nature of Case and Course of Proceedings Below

Bryan E. Sheppard was charged in a one count indictment by a grand jury in the Western District of Missouri. That Indictment alleged Bryan, his brother George Frank

Sheppard (hereinafter "Frank"), Earl D. Sheppard(a/k/a "Skip"), Darlene Edwards and 

Richard Brown aided and abetted each other in damaging and destroying by means of fire and explosive materials, tractor trailers containing ammonium nitrate, and as a direct and proximate result death resulted to six Kansas City, Missouri firefirefighters, in violation of Title 18, United States Code §844(1). (R1)1 All defendants entered not guilty pleas to the charge, and maintained their innocence throughout the trial, sentencing and today.
Prior to trial all defendants filed several discovery motions. Several hearings were conducted before the Magistrate on those Motions, the most important of which are contained in Skip Sheppard's Appendix, Volumes 1 & 2 which is filed with this brief. In addition to discovery Motions, Bryan filed Motions, both pre-trial and during trial, requesting severance and a separate trial. (R82.84) Those Motions requested severance because defendant's co-defendants made admissions implicating him in this crime. Defendant alleged the introduction of these admissions would violate his confrontation rights if his co-defendants choose not to testify. Those Motions were denied based on the government's representations that any error could be cured by

1The record in this case consists of a 22 volume trial transcript, which will be cited as (Vol)-(page); a one volume appendix filed contemporaneously with this brief, which will be c i ted as (BSA(volume)-(page)), and a designated record, which will be cited as (R. ‑‑).

l

2

redaction.

Prior to trial all defendants filed a joint Motion to Dismiss the Indictment, claiming it was barred by the applicable Statute of Limitations. (R63). In the Motion, the defendants argued that the indictment must be dismissed because it was returned more than five years after the date of the crime. The defendants contended that because the death penalty could not have been legally imposed at the time the crime occurred in 1988, the crime is non-capital and governed by the five year statute of limitations. After the Magistrate issued a Report and Recommendation, recommending the district court deny the Motion, the defendants filed joint Objections to the Report and Recommendation and a supplemental Motion to Dismiss. The issue was then argued to the district court after the conclusion of jury selection. At the conclusion of that argument, the district court denied the Motion. All defendants also filed a Motion to
• Dismiss for Pre-Indictment Delay, which was also dismissed.

In early June, 1996, an Omnibus Hearing was conducted, in which the Magistrate Ordered the government to produce its witness list, with addresses, 10 days prior to trial, and ordered the defendants to produce their witness list 5 days prior to trial. (BSA) At that Hearing, the government refused to provide, pre-trial, Witness statements, as that term is defined in the Jencks Act, however, the defendants agreed• to provide their witness list together with all witness statements from those witnesses they intended to call at triaD. (BSA-1)
The government filed its witness list on January 3, 1997, 10 days before the trial date of January 13, 1997. However, despite the Court Order that the list did not contain

addresses for any of the witnesses listed. (BSA-21) On January 8, 1997, Bryan filed his witness list, endorsing 24 witnesses and stating" any or all witnesses previously endorsed by [the] government." (BSA-26) On that same day, the government filed its second witness list, containing approximately 160 witnesses and listing addresses for approximately 1/3. (BSA-30)
Bryan Sheppard's attorney and investigator then interviewed many witnesses contained on the government's witness list. Accompanying them was a certified court reporter, who prepared transcripts of the interviews. The government became aware of these interviews, through further interviews with its witnesses and requested the Court Order counsel to produce those sworn statements. In an ex parte proceeding, counsel disclosed his investigative efforts on this case to the court and argued he never intended to call the witnesses endorsed by the government, but merely included that language as it was "standard practice in this district." (1-141-47) After the hearing, counsel filed an amended witness list, deleting the reference to "any and all witnesses previously endorsed by [the] government." (BSA-41)
On January 16, 1997, the government renewed its Motion to require counsel to provide the witness statements and the district court entered an Order requiring counsel to produce all sworn statements to the government by noon on January 17, 1997. (1-183-86) Counsel moved for reconsideration of that Order and proceedings were conducted before the district court. In an ex parte hearing, counsel told the court the disclosure of these statements would be devastating to his case and render him ineffective. Counsel argued that the endorsement of all government witnesses has

4

been Standard practice in the district, and if he knew it would require him to produce his investigative efforts he would have never included that language in his witness list. (1-199) Counsel went through some of the statements, pointing out they contain impeachment information, along with Brady and Jencks Act material the government failed to disclose. Counsel argued if they are now disclosed to the government, it would destroy his ability to attack the credibility of the witnesses and destroy his ability to mount an effective cross-examination. (1-200-03, 249-272) Counsel told the court his statements demonstrate the manner in which the government investigated this case. Counsel stated the government has given certain witnesses inducements to testify, made no credibility assessments of their truthfulness and has conducted no debriefings. (1-274) Counsel argued if he was forced to give the statements to the government it would allow them to do "damage control" and pick and choose which witnesses they wanted to call at trial. This would completely destroy the defendant's ability to portray to the jury the pattern of how the government has investigated this case, which is one of defendant's defenses to the charge. Further, counsel argued he intended to use some of these statements as a plea bargaining tool, which would also be destroyed if he were forced to disclose the statements to the government. (1-203)
Counsel went on to argue his January 15, 1997, witness list complied with the Omnibus Order, as his original witness list listed only witnesses he may call, while his amended list listed witnesses he intends to call. (1-239-42) Counsel argued the Omnibus Order only requires disclosure of witness statements the party intends to call at trial.

3O

started partying some more and just getting drunk more.
Q. Now, this conversation happened -- well, did you, did you ask Frank Sheppard why he didn't turn himself in?
A. I said, well, why didn't you call the police or, you know, turn them in or whatever. And he said, "1 can't turn in my family, my friends."

(7-1368-69) (emphasis added).	.

During the testimony of Carl Nettles, a jail house informant against Skip, the government asked the following question which, in violation of Bruton, prejudicially

drew the jury's attention to Bryan:

Q. How did the two of you strike up a relationship?

A. We just started talking.
Q. Did you know anybody mutually?
A. Yes.
Q. Who?
A. Richard Brown and Bryan Sheppard.
Q. Okay. Do you see either Richard Brown or Bryan Sheppard in the courtroom?

(8-1454). The defense immediately objected that this identification had no relevance to this case, to which the government responded the question was "used to show as to how these two got to know one another." (8-1454). The Court then instructed the government to proceed and limit the questions to Skip. (8-1454) After, this exchange the witness testified "they had been around the construction site taking... "(8-1455). The defense immediately objected and the following occurred:
MR. O'CONNOR: Judge, I'm going to have an objection to they. He started out with they.
THE COURT: I've already instructed on that, and I think the jury understands. MR. O'CONNOR: Can we approach a minute, Judge, please?
THE COURT: Yes.
(Counsel approached the bench and the following proceedings were had:)

i

O'CONNOR: Here is my concern. This witness is going to testify to nothing about Bryan Sheppard and Richard Brown. So he asked him, do you know these people. Then the next question is Skip, what did Skip tell you? They -- and who does this jury now think is they?
COURT: When you get a chance, ask him.
O'CONNOR: No, because in the conversation he does talk about it, but they can't get into it because of the problem of fitting into it. He did talk about Bryan Sheppard, but there was no good faith basis for him to ask if he knew these people.
COURT: How is he supposed to express himself when he wasn't alone and there were other people, and then Sheppard said that he and other people. That,s a they.
O'CONNOR: But that's the government's problem. They chose to charge it this way, and that problem has been created throughout.
OSGOOD: This is another one of those situations where he's pointing to two people other than who he's testifying about. I move for a mistrial on that basis. COURT: Come on. That's silly.
OSGOOD: It's not, Your Honor.
COURT: Yes, it is. Have him specify who he means by they.
O'CONNOR: No, because that creates the problem that we're talking about, because if he says they, he's going to say Bryan Sheppard, which they're not entitled to get out of him. That's the whole problem here. What has happened is, in my estimation, I don't think it was done on purpose, but my estimation was that he asked him if he knew Bryan and Richard, which he said he did. There's not going to be any testimony from this witness regarding Richard and Bryan at all.
COURT: Because you won't let him.
O'CONNOR: Because he can't under the rules, under the law. And so what I'm saying is that now when he says they, the only logical conclusion for this jury is that they is Richard and Bryan. That's why we asked before that question be stricken from the record.
BECKER: If I may, in the case I earlier provided to the Court, and I believe it was James, summarized the use of neutral pronouns such as they. And even in a two-defendant case when a plural we is used, that's acceptable. So here we have a situation that's much beyond that. There's multiple defendants. It doesn't inextricably lead to these two defendants.
COURT: That's right.
O'CONNOR: Let me make my point here. My point is there was no reason - I objected to relevance. There was no reason to have this man identify Richard Brown and Bryan Sheppard. There's going to be no testimony from this witness regarding those people. And then when the next question comes, you know, what did he say, and he says they, that it's inescapable, in my opinion, for the jury to believe that. So the relief I'm asking for is that the judge

,

would go back and tell the jury to disregard
COURT: The questions and reference to these people?
MILLER: The only reason the question was asked is to show that they didn't just sit there and out of the blue start talking about this, they had something that tied them together. That was the reason the question was asked.
BECKER: If we don't hear any cross-examination that this witness is making it up, that's fine.
PETERS: Judge, the problem I see that's not being addressed, I agree with Mr. Becker's analysis of the case law, except where the prosecutor draws attention to particular defendants.
COURT: I've got that. I understand that. Let's don't do that again.
O'CONNOR: That's the problem. They have created this and now
COURT: We'll instruct them. Let's go.
O'CONNOR: Can I finish, Judge, please? What I'm saying is we cannot be then punished when, Susan Hunt is going to cross-examine him about whether he made this up. They have created this problem. Had they not created it, we wouldn't be in it.
COURT: We'll see how the cross-examination goes. I'll instruct them appropriately.

(8-1456-59). Nettles testimony continued with the used of the "neutral pronoun" "they"

throughout. Defendant asserts this situation is exactly like the situation condemned by

this Court in United States v. Long, the questions by the government invited the jury

to speculate on who constituted "they". In fact, this was more egregious than in Long, as instead of "speculation" the government though its questioning directly pointed its finger at the defendant as the person referred to by "they". This violation alone warrants a New Trial.
Again despite the government assurances this joint trial would be fair, two witnesses, in violation of Bruton, directly testified all defendants were involved. Bridget Dornhoffer, who the defense proved committed perjury during her testimony'° was offered by the government to testify about admissions allegedly made by Darlene

10See brief of Darlene Edwards.

32

33

Edwards. During her direct examination the following occurred:

Q. Now, I'd like to go through, then, with you what Darlene Edwards said about the explosion. All right?
A. Okay.
Q. Did Darlene Edwards talk about anything occurring at her house before the explosion?
A. She had talked about a couple of discussions that she had overheard with the other co-defendants.
PETERS: Objection, Your Honor.
BECKER: Can we approach, please?
PETERS: Move for mistrial.
COURT: Oh.
(Counsel approached the bench and the following proceedings were had:) COURT: That's drama we don't need. We do not need dramatic moves for a mistrial in front of the jury. Now, what's the objection?
PETERS: The objection is that this is the sixth witness he's brought before the Court with a standing motion in limine that other defendants not be mentioned and have the witness say other defendants. It's a violation of Bruton ,-it's ongoing, it's prejudicial, and as we'll discuss later on today -
COURT: It will be stricken. And she should -! will instruct her to not to refer to other defendants or anyone that was not in the room with her when any comment was made.
BECKER: All right.

(10-1839-40) Then in clear violation of the rule announced by this Court in Garcia, the Court advised the jury the redacted names were available, but purposely omitted when it instructed the jury that the reference to the other defendants was improper. The very next question asked by the government was:" Did she say she was with other people?" (10-1840). Again the government, by its questions prejudicially drew the jury's attention to all co-defendants in violation of Bruton.
Finally, during the direct examination of Thomas Butner, who was offered by the government to testify about admissions made by Richard Brown, the government asked him if he knew Frank, Skip, Darlene, Bryan and Richard. When Butner acknowledged

34

that he knew all the defendants the government asked: "Did he say he went with other

people?" And Butner replied: "Right." (2215-18)

Amy Pederson testified to admissions allegedly from Richard Brown. However,

during her cross-examination, she, in violation of Bruton, referred to all co-defendants:

Q: Did he say the big explosion was as a result of the dynamite they blew up underneath the trailer?
A No, he did not.
Q I don't want any names but I want to know where did he say he got this dynamite to blow up this truck? No names, just did he have it or did he get it from somebody else?
A From one of the people at the party.
Q The party, which party?
A The party that's on trial right now.
Q Ma'am.
A You said no names.
OSGOOD: That is all I have, Your Honor.

(12-23t4). Finally, during the cross-examination of Steven Caudill, who testified about

admissions allegedly made by Richard Brown the following occurred:

Q Now this information was not immediately reported to the police by you, was it?
A To the police department, as I recall and like I said, this has been a long time ago. And as I recall coming down it was after me and Richard had had a conversation. I didn't even believe him. I didn't believe him for one second but he told me at one point that Bryan Sheppard was in on it.
O'CONNOR: I object.
COURT: Don't mention other people.
O'CONNOR: May we approach the bench.
COURT: We don't need to approach, i am instructing the jury to disregard that reference to Bryan Sheppard. You are not to mention other people. Just answer his question carefully.
O'CONNOR: Just for the record, I move for a mistrial.
COURT: Denied.

(11-2088). During the testimony of Becky Edwards the following occurred:

A: Okay. What she said.was they stopped to get gas and when, I don't

trial.

35

know if I can say this.
Q: Be careful.
Court: Don't name anybody else. You can just say another person or someone else, but don't name anyone else.
A: We is that allowed to be used, we?
Court: Well, that's generic, yes.

(1946) Again, had Bryan been severed and tried by himself, the jury would not have

heard any of the foregoing.

Defendant asserts there is no balancing test between the government's election

to jointly try defendants and the defendant's constitutional rights. In fact the government
/
•
has no "right" to jointly try defendants, it is permissible only when it can be done fairly
f

and within the bounds of the Constitution. The government, in its Motion in Opposition
I
I
to Defendant's Motions for Severance, stated severance in this case would not be "fair"
f
because it would "require the families of the victims to experience the trauma of trial

testimony on multiple occasions." While the government's concern is certainly noble

and compassionate, it cannot supersede the defendant's constitutional right to a fair

III. THE GOVERNMENT OBTAINED DEFENDANT'S CONVICTION BY KNOWINGLY, RECKLESSLY, OR NEGLIGENTLY PRESENTING FALSE TESTIMONY TO THE JURY IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONTATION AND DUE PROCESS OF LAW.

.A. Standard of Review

This issue involves mixed questions or law and fact, subject to a de novo review. United States v. Duke, 50 F.3d 571,576 (8th Cir. 1995).

B. Discussion

"The function of the prosecutor under the federal constitution is not to tack as

!

many skins of victims as possible to the wail. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial." Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (Douglas, J. dissenting). The constitutional guarantees of due process and fair trial are destroyed when a prosecutor obtains a conviction with the aid of evidence which he actually knows, or should know, to be false, and allows it to go uncorrected. Deliberate deception of a court and jurors by the presentation of false evidence is reprehensible and incompatible with "rudimentary demands 0f justice." Gigilo v. United States, 405 U.S. 150 (1972); 1 v. Illinois, 360 U.S. 264, 269 (1959).
It is immaterial whether the prosecutor consciously solicited the false evidence. It is also immaterial whether the false testimony directly concerns an essential element of the crime charged, or only bears on the credibility of a witness. United States v.-Barham, 595 F.2d 231 (5th Cir. 1979). If there is any reasonable likelihood that the false testimony could have affected the jury's judgment, a new trial must be ordered. United States v. Runge, 593 F.2d 66 (8th Cir.), cert. denied, 444 U.S. 859 (1979).
A prosecutor's duty to correct the false testimony arises when the false evidence appears, United States v. Sanfilippo, 565 F.2d 176 (5th Cir. 1977), or as soon as he becomes aware of the inaccuracies. United States v. Glover, 588 F.2d 876 (2d Cir. 1978). The Supreme Court has held that a conviction obtained by the use of false testimony "must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs, 427 U.S. at 103. The Supreme Court subsequently described this test as a materiality standard under which

36

37

"the fact that the testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt." Bagley, 473 U.S. at 680. In Napue v.

Illinois, the Court explained that the principle that the prosecution may not knowingly use false evidence did not cease to apply "merely because the false testimony goes

only to the credibility of the witness" because the jury's estimate of a given witness "may

well be determinative of guilt or innocence." 360 U.S. at 269.

In the instant case the government adduced testimony from Shawn Furrell about an alleged conversation he had With Bryan at Bryan's home in the fall of 1989. The government knew this conversation could have never taken place, as Bryan was incarcerated in the Clay County jail in the fall of 19891 and charged with six counts of homicide relating to this very same case. Despite that knowledge, the government presented Furell's testimony to the jury and fought the defense when it attempted to

prove the conversation could not have taken place, due to Bryan's incarceration. During

cross-examination of Furrell the following occurred:

Q. Mr. Furrell, can you tell me how you could have seen Bryan Sheppard out at his residence when he was
BECKER: Objection. Can we approach?
O'CONNOR: Yes.
COURT: Yes.
(Counsel approached the bench and the following proceedings were had:) BECKER: Mr. O'Connor is attempting to testify about where Bryan Sheppard was, but that's not for you to testify to.
COURT: That's not for you to say.
BECKER: You can sum up on it if you have other evidence, but
COURT: I think the only question you can ask- I guess you've got some indication that he was in jail at that time.
O'CONNOR: Exactly.
COURT: Well, wait a minute. You can't tell them that. You may not tell them that. O'CONNOR: Okay. I know what to do with it.

38

BECKER: Well
O'CONNOR: I know what to do.
(The following proceedings were had in open court:)
O'Connor:) As I understand it, this photographic memory of yours allowed you to tell the agents exactly what he was wearing back at the time; is that right?
A. Yes.
Q. And was he wearing any kind of an orange jumpsuit?
A. No.
Q. Or a yellow jumpsuit?
A. No.
O'CONNOR: Can we approach a minute?
(Counsel approached the bench and the following proceedings were had:) O'CONNOR: I want to ask him if he had any uniform on that had a jail thing written on the back. I don't want to be cute. I'm just trying to -- that's why I came up here.
COURT: I don't understand. I mean, just ask him if he is, if he is saying that whatever date he's talking about -- and you haven't gotten very specific about the date. What dates have you got this guy in the pokey?
O'CONNOR: From July 27th of '89 to December 29th of '89.
COURT: Did you know this?
BECKER: Yes. I thought it was earlier that he saw Bryan, earlier that year. O'CONNOR: His whole interview, Judge -- let me get it.
PETERS: He's going to be referring to this bottom paragraph.
BECKER: Which date, which report?
O'CONNOR: I'm referring to the February 21st report. He talks exclusively about seeing him between August and October. And then on examination he has moved the fall from September to December. But even if you move it back to August, he still loses.. And the point is if they knew he was in jail, then why would they offer this witness who obviously says, can't even identify him.. It's argumentative, but What I'm saying is that if they knew he was in jail from July to September and this guy is saying that he saw him in the fall -
BECKER: Two things. One, I thought the kid was going to make an ID of him. But secondly, I missed the date. so he has not -- he's obviously not been prepared on this date, and you've got him. I mean, you can offer it as evidence later on that the guy could never have been seen at home during that time. O'CONNOR: Okay. I'll move on. As my offer of proof, I would like to add since he says he has a photographic memory, since he says all of that stuff, I want to ask him more about the orange jumpsuit.
COURT: No.
O'CONNOR:Thank you.
(The following proceedings were had in open court:)
O'CONNOR:I don't have any other questions.

39

(1659-62). Defendant asserts the government had an affirmative obligation to inform the jury that Furrell's testimony was impossible and it should have been struck from the record. Instead the government and the court allowed the impossible testimony to remain in the jurors mind and forced the defense, some weeks later to introduce jail records refuting Furrell. Defendant asserts this was clearly prejudicial, as it came too late to erase Furrell's testimony from the juror's mind. Finally, during closing argument, instead of admitting Furrell's testimony was impossible the government stated: "this kid comes in here and...gives you the wrong year of when he saw Bryan." (21-3912) Clearly, the government misled the jury mandating a new trial.
In addition to Furrell, throughout the government's case against Bryan, they continually adduced testimony that he went to the construction site to steal batteries. The government continually presented this testimony despite the fact the government knew that no batteries were ever stolen. In fact, during the questioning of Robert Williams, Frank Sheppard's next door neighbor, the government attempted to introduce a battery into evidence that Frank allegedly sold to Williams. (14-2680-81) Counsel for Frank Sheppard objected to the introduction of the battery based on the fact that "there is no testimony that anything was taken from this construction site." (14-2681) That objection was denied and the following bench conference ensued:
COURT: i said I'll not sustain on that basis. I think that the evidence is in dispute, let's say, as to whether there was anything taken from the site, batteries or anything else. And there is no question that there is evidence -- whether it was a fact or not, I'm not saying that it is. But there is no question that there is evidence that prior to this occasion they had taken batteries from there. PETERS: Judge, that's not the evidence. The evidence is that nothing was taken from this site. That is the uncontradicted, unimpeached evidence, that nothing

4O

JUDGMENT OF ACQUITTAL, AS THE GOVERNMENT FAILED TO ADDUCE SUFFICIENT EVIDENCE TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT, ON VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW.

was taken from the site. if something was taken prior to this, then it's irrelevant. There is no witness who will say that this battery was from the site, was from equipment at the site, or had anything to do with the site.
BECKER: That's true. I'm not saying that I can prove that this battery is from the site.

(14-2682) Finally, the Court sustained the objection and instructed the jury to disregard. (14-2683) This bench conference highlights the severe prejudice to defendant from the government's continual presentation of misleading evidence. Even the Court was confused about whether or not items were ever stolen from the site. Defendant submits if the Court was unable to keep the facts straight THAT NOTHING WAS EVER STOLEN, how could the jury?
An objection was made and at the bench conference the government admitted no batteries were ever stolen, but argued that it is consistent with their theory that "these people steal from construction sites." (14-2681) That objection was sustained and the battery not admitted. (14-2683)
The government's actions in continually misleading the jury by parading witness after witness through the witness stand and adducing testimony that was completely inconsistent with the undisputed facts of this case, mandate a new trial.

IV.	THE COURT ERRED IN FALLING TO GRANT DEFENDANT'S MOTIONS FOR

A. standard of Review

When the Court of Appeals reviews the sufficiency of evidence it must consider

4]

to support the jury's verdict. 1997).

the evidence in the light most favorable to the government verdict, giving the government the benefit of all reasonable inferences that can be drawn from the
evidence.. United States v. Darden, 70 F.2d 1507, 1517 (8th Cir. 1995). A conviction

is reversed for lack of sufficient evidence only if no construction of the evidence exists United States v. Darant, 119 F.3d 1322, 1326 (8th Cir.

B. Discussion

There was insufficient evidence to convict defendant, as the government's evidence depended on uncorroborated out of court admissions of one or more co-defendants, which were totally inconsistent with the physical evidence, it is well established that a conviction cannot be based solely on the out of court statement of a defendant, absent corroboration by independent evidence. Wong Sun v. United States, 317 U.S. 471,488-89 (1963). While the corroborative evidence need not be sufficient independent of the statements to establish the corpus delicti, it must establish the trustworthiness of the statement. Opper v. United States, 348 U.S. 84 (1954). Moreover, the corroborative evidence must provide "substantial independent evidence that the offense has been committed". Sansone v. United States, 344 F.2d 287,292 (8th Cir. 1964).
In the instant case the out of court statements allegedly made by Bryan Sheppard not only lacked corroboration but were directly refuted by the physical evidence and undisputed facts adduced by the government. Brian Attebury told the jury Bryan was at the site trying to break into the trailer when he saw a security guard

42

coming. (11-2023) In order to "divert" the security guard someone started a fire and the

security guard went to the location of the fire instead of continuing on to the trailer.

•	If the Riggs testimony is to be believed at all, then Attebury's account is contrary

to the facts. The security guards were never walking up to the trailer when the pick-up truck was set on fire, they were at QuikTrip.
Frank Gile told the jury that Bryan and Richard said they started a pick-up truck

on fire that was parked next to the trailer. (12-2255) However, the government's experts testified the pick-up truck parked next to the trailer was not the source of the
(
fire. (16-3066)

Kimberly Finch testified Bryan told her he set a lock on fire. (14-2429) This statement defies common sense; metal locks are not flammable. Christine Mall testified Bryan told her he blew up a truck with dynamite. (11-2063) Again, no truck was ever blown up with dynamite. Finally, Pare Harth claimed to have overheard a

conversation between Richard and Bryan in which Richard claimed to have burglarized a shed in order to steal tools. (12-2197) Again, no shed was at the site and no tools stolen.
Defendant asserts the need for corroboration of the alleged "confessions" was particularly strong in this case due to the massive pre-trial publicity. Not only had this case made the nationally televised show "Unsolved Mysteries," it was the "biggest thing that ever happened in Marlborough" (13-2548). In addition to this hype, many of the government witnesses were convicted felons hoping for either leniency in their sentence or a share of the $50,000 reward in exchange for their testimony. In addition.

43

that during seven plus years since the explosion "50 million" rumors floated around Marlborough regarding the cause of the explosion and who was responsible.- Clearly the government adduced insufficient evidence to support defendant's conviction.
Defendant also asserts there was insufficient evidence presented to prove the cause of the explosion. Defendant, pursuant to Rule 28(i) of the Federal Rules of Appellate Procedure adopts all arguments on this issue contained in his co-defendant's briefs.
V. THE DISTRICT COURT ERRED WHEN IT, IN VIOLATION OF THE JENCKS ACT AND RULE 26.2 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE, REQUIRED DEFENDANT TO PROVIDE THE GOVERNMENT PRIOR TO TRIAL, WITNESS STATEMENTS OBTAINED FROM GOVERNMENT WITNESSES, WHEN DEFENDANT ONLY INTENDED ON USING THE STATEMENTS FOR IMPEACHMENT, AND HAD NO INTENTION OF CALLING THOSE WITNESSES IN HIS CASE.

A. Standard of Review
This issue involves mixed questions of law and fact, subject to a de novo

review. United States v. Duke, 50 F.3d 517, 576 (8th Cir. 1995).

B. Discussion

The investigation of this case spanned eight years, and included prolonged and extensive grand jury proceedings. Prior to trial, there were extensive discovery proceedings in the district court and Orders were issued setting deadlines for the disclosure of Brady and Jencks Act material.
Pursuant to the Omnibus Hearing, government was required to file their witness list with addresses ten day's before trial, and the defendants were required to file theirs five days before trial. Contrary to standard practice in this district, the government did

44

not agree to provide witness statements, as that term is defined in Title 18, United States Code, §3500, prior to trial.11 Despite the failure of the government to agree to provide those statements prior to trial, the defendants agreed to provide a witness list together with all witness statements from those witnesses they intended to call at trial.
Trial was originally scheduled to commence on January 13, i997. Pursuant to the Omnibus Report, the government filed its witness list on January 3, 1997. (BSA-21). However, in direct violation of the Omnibus Report, that list did not contain addresses for any of the witnesses listed.
On January 8, defendant filed his first witness list endorsing 24 witnesses and "any or all witnesses previously endorsed by [the] Government." (BSA-26)
After hearings on the government's failure to comply with the Omnibus Report and provide addresses for their witnesses, the government served defendant with its second witness list on January 8, 1997, which contained addresses for only 2/3 of the 160 witnesses listed. (BSA-30)
On January 15, 1997, six days prior to the beginning of opening statements, defendant filed his Amended Witness List, eliminating the reference to "any and all witnesses previously endorsed by (the) government." (BSA-41).
Prior to the filing of that Amended Witness List, counsel for defendant interviewed several witnesses including seven of the endorsed government witnesses, who were incarcerated in surrounding jails. Those interviews were conducted under oath and

11That situation changed after the Omnibus, and the government was required to provide Jencks Act statements prior to trial.

 

      

45

recorded by a court reporter. The government soon learned of the counsel's investigative efforts through further interviews with their witnesses, and requested the district court to Order counsel to sworn statements on January 16, 1997. The district court granted that Motion and Ordered counsel to produce the statements by noon, January 17, 1997.
On January 17, 1997, counsel moved for reconsideration of the Court's Order, arguing his initial endorsement of "any and all government witnesses" was standard practice in the Western District of Missouri, and he did so out of an abundance of caution, so as not to overlook any witness that the defendant may at some point intend to call.
An en camera hearing was conducted that day, in which counsel characterized the matters covered in his witness statements as cross-examination, material, exculpatory and impeaching material. Counsel argued that in some instances, the transcripts demonstrate the government's failure to comply with its Brady obligations. Further, Counsel stated that he never really intended to call any of the eleven witnesses from whom he had taken statements.
Counsel told the court he wanted to withhold the transcripts of these interviews until the witness testified, because the statements demonstrate the manner in which the government has investigated this case. Counsel told the court the statements indicated that the government has given certain witnesses inducements to testify, made no credibility assessments of their truthfulness and has conducted no debriefings. (1-274) Counsel argued if he was forced to give the statements to the government it would

allow them to do "damage control" and pick and choose who they wanted to call at trial. Counsel argued early disclosure of this information would completely destroy the defendant's ability to portray to the jury the pattern of how the government has investigated this case, which is one of defendant's defenses. Further, counsel 'argued he intended to use some of these statements as a plea bargaining tool, which would
also be destroyed if the disclosed the statements to the government. (1-203)
I
Finally, counsel argued that if the government had access to these statements it

would reveal his trial strategy and render him ineffective. Prior to this hearing counsel retained the services of James R. Wyrsch to represent him in the hearing. Wyrsch argued that under the Jencks Act, Title 18, United States Code, § 3500, as well as under Rule 26.2 of the Federal Rules of Criminal Procedure, if the defendant did not intend to call these witnesses then he was not required to produce the statements. After hearing argument from the government, the Court ordered the statements produced to the government, unless an extraordinary writ was sought by the defendant. (1) Defendant sought emergency relief from this Court by way of a Writ of Mandamus, which was denied on (2). After the Writ was denied, counsel provided the statements to the government.
Defendant asserts the district court's order exceeded the scope of its statutory authority, resulting in severe prejudice to his ability to defend this case. The attempts by district court judges to prevent undue surprise, insure the due process rights of defendants or to maintain an orderly trial have been uniformly rejected by the Court of Appeals. For example, in United States v. Algie; 667 F.2d, 569 (6th Cir. 1982), the

4?

• district court ordered the government to produce Jencks Act statements the evening before the witnesses testimony. The United States Attorney refused to abide by the Court's order and the District Judge imposed the sanction that no witness would he allowed to testify unless the court's order had been obeyed with respect to that witness.
The government appealed and the Court of Appeals, while "heartily" approving the District Judge's objectives, reversed stating: "It is... our manifest duty as we see it to say that the exigencies of court administration.., do not.authorize us to sanction any amendment of the mandatory language of the Jencks Act, nor do we find.., any intention on the part of Congress to amend the Jencks Act or to authorize a District Judge to require a United States Attorney to deviate from its terms..."
Likewise, this Court has held that the district court may not order the government to produce Jencks Act material prior to trial. See United States v. White, 751 F.2d 726,729 (8th Cir. 1984).
Moreover the plain language of Title 18, United States Code §3500 and Rule 26.2 of the Federal Rules of Criminal Procedure, clearly states that witness statements need only be produced after the witness testifies. Additionally, the statute and rule appears only to apply to those witnesses a party actually calls to the stand to testify. In the instant case, the district court never stated what sanction it would impose for failure to comply with the Omnibus report. However, the court did state it believed the Omnibus report created different obligations than those of the Jencks

Act.12

Under the present Eighth Circuit law, defendant asserts the Western District

•	Omnibus procedure is not enforceable as an obligation on either party, as its requirement: of pre-trial production of witness statements violates Title 18, United States Code, § 3500and Rule 26.2 of the Federal Rules of Criminal Procedure. Based on the foregoing, defendant asserts the district court erred in requiring pre-trial production of witness statements of those witnesses he never intended to call, mandating a New Trial.

Vl. THE DISTRICT COURT LIMITED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION AND CROSS EXAMINATION MANDATING A NEW TRIAL.

A. Standard of Review

This Court reviews the District Court's limitation of cross examination for an abuse of discretion. United States v. Caldwell, 88 F.3d 522,524 (8th Cir. 1996).
B. Discussion

The sixth amendment's Confrontation Clause provides: "In all criminal
s

prosecutions, the accused shall enjoy the right..."to be confronted with the witnesses against him." The Court has emphasized that "a primary interest secured by [the Confrontation Clause] is the right of cross-examination." Douglas v. Alabama, 380 U.S. 415, 418 (1965). The opportunity for cross-examination, protected by the
Confrontation Clause, is critical for ensuring the integrity of the facffinding process.
		..

12The Co looked to the Jencks Act for the definition of what constituted a statement under the Omnibu's report.

48

"i

49

Cross-examination is "the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316 (1974). Indeed, the Court has recognized that cross-examination is the "greatest legal engine ever invented for the discovery of truth." California v. Green, 399 U.S. 149, 158
1970).

During cross examination, counsel for Bryan attempted to elicit the fact that Attebury had four misdemeanor convictions, not just one as he testified to on direct, and the fact that he only called the ATF with his alleged information, after he committed a burglary and threatened a witness. (11-2027) At the beginning of that cross examination the court not the government, objected and a bench conference occurred. During that conference, Counsel argued this evidence" goes right to the heart of cross examination," and provided the court with records reflecting the disposition of the witnesses' charges. (11-2027) After briefly reviewing those records the Court sustained its own objection. (11-2027) Counsel, asked the court to reconsider its ruling, reciting the following facts regarding Attebury's motive for providing information in this case:
[In] 95. He called the ATF and he said I have information for you about this case. And they have just put him up and said no promises and he is just here out of the goodness of his heart and he had no intention when he called ATF. Well on 2-15-95 he called the residence of the person who he committed the first degree burglary and threatened to kill her if she testified and threatened to pay her off with a $500 bribe. The authorities found out about his phone call on the 15th. Then on the 18th he calls the ATF. And on the 1st of March he is indicted with the burglary and for the tampering with the witness. And it goes to his motive. It goes to his motive to show why he was coming forward. He wasn't coming forward out of the goodness of his heart. And he knew he was going to get in trouble and he was calling ATF to get out of trouble and I think it goes to his interest.

5O

Morales stated he never received any assistance from law enforcement in

(11-2028) The government responded that Attebury has never been charged or convicted of either of those crimes, which prompted counsel to provide the following additional facts regarding Attebury's motive:
Here's what happened, Judge. What happened was he started cooperating and then his case got reduced to tampering in the second degree. I talked with Mr. Hassler who told me, who represented him, that Mr. True, or someone on behalf of the government, had been talking with him and telling him they were going to help him with that case. And I want to ask him about that.

(11-2029) Again the court sustained its own objection ruling the evidence was "speculative." When the defense pointed out that the attempted cross examination goes to an issue raised by the government on direct examination, that the witness claimed to only have one misdemeanor conviction, when in fact he has four, the court again denied the questioning. (11-2029)
During the cross-examination of Steven Morales, he claimed he was a trustee in the Clay County jail. (14-2593) During his tenure as a trustee, Morales claims he was "set up" by some Other inmates and was suspended for one week. (14-2594) However, Morales claimed he was cleared of those charges and reinstated. When the defense challenged those statements and attempted to prove that Morales was found guilty of the charges, the government objected and after a lengthy bench conference, the Court denied the proposed cross-examination. Further, this bench conference discloses the Court chose to believe the testimony of a convicted felon over certified documents.
Later during cross-examination of this same witness, the Court again restricts the defense.

5]

exchange for his information. (14-2171) However, on cross-examination he acknowledged that his Cass County bond was reduced from $5,000 cash to a signature bond. Morales claimed he didn't know if the government directly or indirectly assisted him in getting that bond reduction. (14-2615) However, Morales admitted an ATF agent told him he spoke to someone regarding his bond. (14-2616) When further cross-examination was attempted regarding the bond reduction and a second bond reduction in Jackson County, the government objected and a lengthy bench conference ensued. (14-2617-24) During that bench conference the government constantly denied knowing who spoke to the Cass and Jackson county authorities, claiming "if [Morales] doesn't know about it, then it doesn't matter what Dave True did for him... " (14-2620)
VII. THE DISTRICT COURT ERRED IN ALLOWING THE GOVERNMENT TO ADMIT EVIDENCE OF UNCHARGED MISCONDUCT AS THAT EVIDENCE WAS PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.

A. Standard of Review

This Court reviews a District Court's decision to admit prior bad act evidence under Rule 404(b) of the Federal Rules of Evidence under the abuse of discretion standard. United States v. LeCompte, 9.9 F.3d 274, 277 (8th Cir. 1996) A conviction will be overturned for the erroneous admission of 404(b) evidence if the "evidence in question had no bearing upon any of the issues involved." United States v. Barker,
82 F.3d 273, 276 (8t" Cir. 1996)

B. Discussion

To admit Rule 404(b) evidence for purposes other than to prove propensity, the

evidence must:

52

(1) be relevant to a material issue raised at trial,

(2) be similar in kind and close in time to the crime charged,

(3) be supported by sufficient evidence to support a finding by a jury that the defendant committed the other act, and

(4) not have a prejudicial value that substantially outweighs its probative value.

The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character. Huddleston v. United States, 485 U.S. 68! (1988). In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant.was the actor. See United States v. Beechum, 582 F.2d 898, 912-913 (CA5 1978) (en banc). Huddleston, supra.
In United States v. Roark, 924 F.2d 1426 (8th Cir. 1991) this court held the government cannot, however, in its case-in-chief, introduce evidence of appellant's unsavory character merely to show that he is a bad person and thus more likely to have committed the crime.
Throughout this trial the government attempted to portray the defendants as unsavory characters. Witness after witness testified to illegal drug use and implied threats. The District Court allowed much of this testimony, finding it was not all that bad because in its opinion the defendants were not "members of the Church of Jesus Christ of Latter Day Saints in this trial." (6-1191)
Despite the Court's opinion of the defendant's character, defendant asserts the continual introduction of uncharged misconduct evidence in violation of Rule 404(b)

53

resulted in severe prejudice, warranting a new trial. A prime example of the

government's tactics in this case as it relates to Bryan occurred during the testimony of

Travis Small:

Q Now, do you remember the time when you learned information from Bryan Sheppard about his involvement in the explosion?
A Yes, it was March of '89, around six o'clock, between six and eight. He had paged me to purchase an eight ball of cocaine.
• O'CONNOR: Objection. Relevance.
COURT: I think that is probably not necessary.
MILLER: It goes to show -
(Proceedings out of the hearing of the jury.)
MILLER: It goes to show their relationship and we are not going into it any deeper than when he pulls up, Sheppard gets in the car and he's acting very nervous and paranoid. "Let's get out of here" and he tells this man why. He was a supplier. We are not going to get into the fact he was a supplier. COURT: I am going to instruct the jury to disregard the eight ball. Just lay off the
cocaine.

(12-2168)

Despite the Court's instruction to "lay off the cocaine", Small continues his

testimony and again refers to cocaine use:

Q After he got in the car what did he say to you?
A He told me to get out of the neighborhood, the cops were all over the neighborhood.
Q How was he acting?
A Paranoid. The use of cocaine will make you -
O'CONNOR: Object to the reference to cocaine.
COURT: You are not to refer to drugs in that way. Just answer the question and the question only.
WITNESS: All right, sir.
O'CONNOR: I also move for a mistrial.
COURT: That is overruled. Denied.

(12-2169) Later on in the trial the government, over strenuous defense objection,

allowed evidence that Darlene and Frank burned Darlene's car for insurance money.

(13-2335-2353) Later, during the jury instruction conference the court determined it erred in allowing that evidence.13 However, defendant asserts this was too late as the jury had already heard substantial testimony on this issue. While Bryan was not directly implicated in that act, the court did allow testimony of Christine Mall that Bryan allegedly went to the site to blow up Darlene's truck for money. (11-2063) Clearly, there was not one shred of evidence that this act ever occurred. Defendant asserts this testimony, coupled with the prejudiced testimony of Darlene burning her car, resulted in severe prejudice mandating a new trial.
Defendant asserts the District Court should have declared a mistrial due to this prejudicial testimony.

CONCLUSION

Based on the foregoing, Defendant respectfully requests this Honorable Court

dismiss this case, as the prosecution was barred by the statute of limitations and pre-

indictment delay, or in the alternative reverse defendant's conviction and remand for a New Trial in which he will be tried separately. In reviewing the errors alleged in this

appeal, Defendant points the Court to Chief Judge Harvey Johnsen's observation in

Homan v. United States, 279 F.2d 767 (8th Cir), cert denied 364 U.S. 866 (1960):

Errors of the trial court which may be prejudicial in a close criminal case, in the sense of being capable in such a situation of possibly affecting the result, can well be without any such rational possibly in a strong case, and thus not entitle the defendant to a reversal of his conviction. The reviewing court must, or course, be able to say with fair assurance that the errors complained of could not, with natural operation in the total setting and proceedings had, be regarded as having possessed any

13See Darlene Edwards' brief for a full discussion of this issue. 54

S5

influencing effect.

Id. at.771. Defendant asserts the errors complained of in this case were so pervasive

and strong they infected the entire trial and did affect the result. As such, Defendant is

entitled to a New Trial.

Respectfully submitted,

	/~      ~	/
	~<7"-'-"	r" -., - .....
JOHN P. O'CONNOR
Twelve Wyandotte Plaza, Suite 1300
120 West 12t" Street
Kansas City, MO 64105
(816) 471-7000

Certificate of Service

I hereby certify that two copies of the foregoing were mailed, postage pre-paid this 9t" day of February 1998, to:

Paul Becker
Assistant United States Attorney
1201 Walnut, Suite 2300
Kansas City, MO. 64106
Attorney for Plaintiff

and one copy to:

Susan M. Hunt
1711 Westport Road
Kansas City, Mo. 64111
Attorney for Earl ("Skip") Sheppard

John R. Osgood
Suite 305
Midland Bank Building
740 N.W. Blue Parkway
Lee's Summit, Mo. 64086
Attorney for Richard Brown

                  

56

Patrick W. Peters
Griffith Building
405 E. 13t" Street
Kansas City, Mo.
Attorney for George Frank Sheppard

Will Bunch
310 Armour Road
N. Kansas City, Mo. 64116
Attorney for Darlene Edwards

John P. O'Connor

ADDENDUM

i i

	UNITED STATES OF AMERICA	JUDGMENT IN A CRIMINAL CASE
" Offenses Committed On or After November 1, 1987) V.
		BRYAN E. SHEPPARD	Case Number; 96-00085-04-CR-W-8
	-	(Name of Defendant)		John P. O'Connor

" Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offenses
			Date Offense	Count
	Title & Section	Nature of Offense	Concluded	Numbers

	18 U.S.C- Sees.	Aiding and abetting an act of arson
	844(i) and 2	to property used in interstate com-
		merce thereby causing death to public
		safety officers performing official
		duties	11/29/88	1

	The defendant is sentenced as provided in pages 2 through 5 Of this judgement. The sentence is
	impose0 pursuant to the Sentencing Reform Act Of 1984.
	The defendant has been found not guilty On count(s)
	• and is diSCharged as to such count(s).
	Count(s) 	- (is)(are) dismissed on the motion of the United States.
	It is ordered that the defendant shall pay a special assessment of $ 50.00	for count(s)
		.......... which shall be due ‑x‑ immediately ‑‑ as-follows:

IT IS FURTHER ORDERED that the defendant shall notify the United States attorney for this district within 30 clays of any change of name, residence, or mailing address until all fines, restitution, COSTS. and special assessments imposed by this judgement are fully paid.

Defendant's Soc. Sec. NO.: - 500776-6622

Defendant Date of Birth: 03/05/71 ,,.

Defendant's Mailing Address:

CCA-Leavenworth Detention Center
I00 Highway Terrace
Leavenworth, Kansas- 66048
Defendant's Resi0ence Address:
07/02/97

/./Joseph E. Stevens, Jr.
United States District Judge

RETURN

Judgment-Page .2  Of 5

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be impnsoned  a term of his natural life. -

Thecourtmskes the following recommendations to the Bureau of Pnsons: The court recommends that defendant be incarcerated in the United States Penitentiary in Leavenworth, Kansas, so that he may be close to his family.

I have executed this judgment as follows:

Defendant delivered on 

•	°

tO	~,	a

with a certified copy of this judgement

United States Marshall

By .........
Deputy Marhall

Defenant:
Case Number:
BRYAN E.    SHEPPARD
96-O0085-04-CR-W-8
SUPERVISED RELEASE
		
	Judgment-- Page
3    Of 5

"Upon release from impisonment, the defendant shall be on supervised release for a term of five years.

While on supervised release, the defendant shall not commil another federal, state, or I or local crime and Shall not illegally possess a controlled substance. The defendant Shalll comply with the standard COnditions that have been adopted by ,.his court (set forhth below). If this judgement imposes a restitution obligation, it shall be a condition o,' supervised release that the defendant pay any such restitution that remains unpaid at the commencement el ;he term o`f supervised release. The defendant shalll comply with the following additional conditions:

The defendant shall report in person to the probation Office in the district to which the defendant is reieased within 72 hours 'of release from the custody Of the Bureau of Prisons.

[] The defendant shall pay any fines that remain unpaid at the commencement of the term of supervised release.

The defendant shell not pos,sess a firearm or destructive device.

SEE	ATTACHMENT 3A,

,

0

4 °

Defendant:
Case Number:
BRYAN E. SHEPPARD
96-00085-04-CR-W-8
Judgment--Page 3A of 5

Speical Conditions of Supervised Release

Defendant shall personally report to the Probation Office within 72 hours of release.

Defendant shall pay any restitution balance during the period of supervision.

Defendant shall successfully participate in any substance abuse counseling program, which may include chemical or Breathalyzer testing, as directed by the Probation Office, and pay any associated costs, as directed by the Probation Office.

Defendant shall submit his person, residence, office or vehicle to a search conducted by the U. S. Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release. Failure to submit to a search may be grounds for revocation. The defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.

RESTITUTION
‑‑. The defendant alkali make restitution to the following persons in the following amounts:

Kansas City, Missouri Fire Department
414 Ease 12th Street, 22nd Floor
Kansas City, Missouri 64106
Attention: Rick Brisbin, Fire Chief	$536,000

Payments of restitution are to be made to:
the United States Attorney for transfer to the payee(s)
X the payees

Restitution Shall be paid:

.‑ in full immediately.
‑ in full not later thann
in equal monthly  installments over a period of ‑‑‑‑ months. The first payment is due on me dale ct this judgement.  Subsequent payments are due monthly thereafter.

in nstallments according to the following shchedule of payment.
Restitution shall be paid during incarceration in installments to commence 30 days after the date of this judgment and shall continue until paid in full. No further payments shall be required after the sum of the amounts actually paid by all defendants has fully compensated the victim.

Any payment alkali be divided proportionately among the payees named unless otherwise specifiied here.

-,,	•	,,
"                     FORFEFEITURE
The. defencant is ordered to forfeit the following property to the United States:

  

      

			
‑---..-....-:		

Defendant:	BRYAN E. SHEPPARD	Judgment--Page 5 of 5
Case Number:	96-O0085-O4-CR-W-8
STATEMENT OF REASONS

X The court adopts me factual findings anti guideline application in the presentence report.

OR
The court adopts the factual findings and guideline application  in the presentence report except
(see attachment if necessary):

Guideline Range Determined by the the Court:

	Total Offense Level:	4 3

Criminal History Category: ‑‑‑‑‑‑‑‑‑ Imprisonment Range: ‑‑‑‑‑ to ‑‑‑‑ Life‑‑‑ months -  Supervised Release Range: 3 to 5 years Fine Range:$ 25,000 to$ 250,000
X Fine is waived or is below the guideline range, because of the defendant's inability to DaY. Restitution: $ ,536,000

O Full restitution iS not ordered for the following reason(s):

The sentence is within the guideline range, that range does not exceed 24 months, and the court finds no reason tO dlepart from the sentence called for by applicatlon of the guidelines.

OR
:- The sentence is within the guideline, range, that range exceeds 24 months, and the semence is imposed for the following reason(s):

OR
The sentence departs from the guideline range

"upon motion Of the government, as a result of defendant's substantial ass,stance• for the following reason(s):