VS.

f

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO. 97-3019 WMKC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

	EARL D. SHEPPARD a/k/a "SKIP"
	Defendant-Appellant

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

Appellant Earl D. Sheppard's Brief

Susan M. Hunt
1711 Westport Road
Kansas City, Mo. 64111
(816) 756-3737

Attorney for Earl D. Sheppard

SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT

Earl D. Sheppard ("Skip"), 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.

ii

TABLE OF CONTENTS

Summary of Case and Request for Oral Argument	.	i

Table of Authorities	iv

Other Authorities	vi

Preliminary Statement	vii
Statement of Consolidation	vii

Statement of Issues Presented for Review 	viii
Statement of The Case	•	1

Summary of Argument	29

Argument:

I. 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, PREVENTED DEFENDANT
FROM CONDUCTING APPROPRIATE CROSS EXAMINATION,
AND DEPRIVED HIM OF PRESENTING POWERFUL
EXCULPATORY EVIDENCE, ALL IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS TO CONFRONTATION AND
DUE PROCESS OF LAW RENDERING HIS TRIAL FUNDA-
MENTALLY UNFAIR.		30

I1. THE COURT ERRED WHEN IT REFUSED TO
GIVE DEFENDANT'S ALIBI INSTRUCTION, AS THAT
INSTRUCTION WAS SUPPORTED BY THE EVIDENCE 	. . . .	41

III. THE COURT ERRED IN FALLING 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, IN VIOLATION OF DEFENDANT'S RIGHT
TO DUE PROCESS OF LAW ......... 	44

°°°
111

IV. 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 ................................

Conclusion	•	•

Certificate of Service ..................................... . ............
5O

53

54

Addendum
Judgment and Commitment Order

iv

TABLE OF AUTHORITIES

Alfordv. United States, 282 U.S. 687 (1931)	'	39

	Barber v. Page, 390 U.S. 719,725 (1968)		"	38

Bruton v. United States, 391 U.S. 123 (1968) 	30, 31, 32, 34, 36, 381 40
Davis v. Alaska, 415 U.S. 308, 316 (1974)	38
Gordon v. United States, 344 u.s. 414, 423 (1953) ........... 	39

Homan v. United States, 279 F.2d 767 (8th Cir.)
	cert. denied 364 U.S. 866 (1960) .................................. 	53

Huddleston v. United States, 485 U.S. 681 (1988) 	51
Opperv. United States, 348 U.S. 84 (1954) ............... 	45
Richardson v. Marsh, 481 U.S.-200 (1987) 	i 	31
Sansone v. United States, 344 F.2d 287, 292 (8th Cir. 1964) 	45

United States v. Alvarado, 882 F.2d 645 (2d Cir. 989)
	certdenied, 493 U.S. 1701 (19)	' 41

United States v. Anderson, 654 F.2d 1271, 1270 (8th Cir. 1981) 	43
United States v. Barker, 82 F.3d 273, 276 (8th Cir. 1996) 	50
United States v. Beechum, 582 F.2d 898, 912-13 (CA5 1978) (en banc) 	51
United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979) 	43
United States v. Darant, 119 F.3d 1322, 1326 (8th Cir. 1997) 	i.. 44
United States v. Darden, 70 F.2d 1507, 1517 (8th Cir. 1995) 	44
United States v. Duke, 50 F.3d 571,576 (8th Cir. 1995) 	42

United States v. Echeles, 352 F.2d 892 (7th Cir. 1965) 		40
United States v. Garcia, 836 F.2d 385 (8th Cir. 1987) 			31, 37

¥

United States v. Jones, 101 F.3d 1263 (8th Cir. 1996) 	32, 33
United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982)	30
United States v. LeCompte, 99 F.3d 274, 277 (8th Cir. 1996)	.50
United States v. Long, 900 F.2d 1270, 1280 (8th Cir. 1990) 	32

.\
United States v. Magena, 450 F.2d 511 (8th Cir. 1971) .................... 43, 44

United States v. Nagib, 56 F.3d 798 (7th Cir. 1995)	'	41

United States v. Queen, No. 95-178 (4th Cir., December 29, 1997)		~	53
United States v. Roark, 924 F.2d 1426 (8th Cir. 1991) 			.51
United States v. Schmick, 904 F.2d 936, 943 (5th Cir. 1990) 			30
United States v. Smith, 794 F.2d 1333, 1335 (8th Cir. 1984)	'		' 41
United States v. Thomas, 571 F.2d 285 (5th Cir. 1978) ...... 			41
United States v. Van Hemelryck, 945 F.2d 1493 (11th Cir. 1991) 			31
United States v. Washington, 952 F.2d 1402 (D.C. Cir. 1991) 			31
United States v. Webster, 769 F.2d 487, 490 (8th Cir. 1985) 			43
Wong Sun v. United States, 317 U.S. 471,488-89 (1963) 			45

OTHER AUTHORITIES Title 18, United States Code §844(i) Title 18, United States Code §844(1) 28 DePaul LRev at 1165 n. 15

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 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, PREVENTED DEFENDANT FROM CONDUCTING APPROPRIATE CROSS EXAMINATION, AND DEPRIVED HIM OF PRESENTING POWERFUL EXCULPATORY EVIDENCE, ALL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO CONFRONTATION AND DUE PROCESS OF LAW RENDERING HIS TRIAL FUNDAMENTALLY UNFAIR.

Bruton v. United States, 391 U.S. 123 (1968)

United States v. Garcia, 836 F.2d 385 (8th Cir. 1987)

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

United States v. Echeles, 352 F.2d 892 (7th Cir. 1965)

I1. THE COURT ERRED WHEN IT REFUSED TO GIVE DEFENDANT'S ALIBI
INSTRUCTION, AS THAT INSTRUCTION WAS SUPPORTED BY THE EVIDENCE.

United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979)
United States v. Webster, 769 F.2d 487, 490 (8t" Cir. 1985)

United States v. Anderson, 654 F.2d 1271, 1270 (8th Cir. 1981)

United States v. Magena, 450 F.2d 511 (8th Cir. 1971)

	II1. THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTIONS FOR

	JUDGMENT OF ACQUITTAL, AS THE GOVERNMENT FAILED TO ADDUCE
	SUFFICIENT EVIDENCE TO PROVIDE DEFENDANT'S GUILT BEYOND A

	REASONABLE DOUBT, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE
	PROCESS OF LAW.

United States v. Durant, 119 F.3d 1322, 1326 (8th Cir. 1997)

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

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

ix

Sansone v. United States, 344 F.2d 287,292"

IV. 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. Barker, 82 F.3d 273, 276 (8t" Cir. 1996)

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

United States v. Roark, 924 F.2d 1426 (8th Cir. 1991)

United States v. Queen, No. 95-178 (4th Cir. December 29, 1997)

STATEMENT OF THE CASE

I. Nature of Case and Course of Proceedings Below

Earl D. Sheppard (alk/al"Skip")1 was charged in a one count indictment by a grand jury in the Western District of Missouri. That Indictment alleged Skip, his brother George Frank Sheppard (hereinafter "Frank"), Bryan E. Sheppard, Darlene Edwards and Richard Brown aided and abetted each other in damaging and destroying by means of fire and explosives 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)2 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, Skip 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

1Throughout the trial Mr. Sheppard was referred to by his nickname"Skip." In order to be consistent with the references in the transcript, he will also be referred to as "Skip" in this appeal.

2The record in this case consists of a 22 volume trial transcript, which will be cited as ((Vol)-(page); a three volume appendix filed contemporaneously with this brief, which will be cited as (A(volume)-(page)), and a designated record, which will be cited as (R.‑‑).

,

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 redaction. Another ground for severance was the government's intention to introduce a redacted tape recorded confession of c0-defendant Darlene Edwards. The redaction in that statement eliminated the references to co-defendants Bryan Sheppard and Richard Brown. Skip maintained the tape recording was exculpatory as to him, as his name was never mentioned in the tape as having any participation in this crime. Skip argued the joint trial situation and redaction prevented him from presenting powerful exculpatory evidence. (R184) That Motion was also denied. (R198)
Also, 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. (R147,159,197). 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. (R229) All defendants also filed a Motion to Dismiss for Pre-Indictment Delay, which was also dismissed.
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

In the early morning hours of November 28, 1988, a massive explosion ripped through a construction site in south Kansas City, Missouri, killing six firefighters. The site, the Bruce Watkins Memorial Drive project, is located at 71 Highway and Blue River Road, in the Kansas City neighborhood known as "Marlborough." (2-368) Appellants were all well-known residents of Marlborough.
Initially the Kansas City Missouri Police department and Alcohol, Tobacco and Firearms (ATF) jointly investigated the explosion. Later ATF agent Dave True took over as lead investigator. The investigation into the cause of the explosion resulted in as much theorizing and speculation as the investigation into who was responsible for having set the fires.
Initially, the investigation into who set the fires focused primarily on reported disputes between union and non-union supporters. The disputes arose from project

3

4

directors employing non-union cement companies to deliver concrete to the site. Although the investigation into "labor" was pursued for almost seven years, and numerous suspects surfaced, no arrests or indictments resulted. The "labor angle" had not been completely abandoned when, on February 17, 1995, agent True and the television program "Unsolved Mysteries" worked together and presented their version of the explosions on a segment of the program.
In a move that proved to be of monumental importance, different rewards were offered during the 8-year investigation, for information leading to the arrest (not necessarily the conviction) of anyone involved in setting the fires. Agent True took the reward offerings to unprecedented lengths when he posted reward offers on the walls of every penal institution in Kansas and Missouri.
Against this backdrop, residents of Marlborough scurried to divulge accusations which promised riches. In spite of what had been, by February of 1995, a virtually "dried -up" investigation, after airing "Kansas City's Unsolved Mystery" (2-364;17-3135) and the posting of rewards, leads became abundant and flurries of accusations rampant. A cast of characters suddenly and voluntarily, paraded through the investigative offices of ATF and local police departments and eventually through the witness stand during this trial. After sifting through its available Samaritan citizenry, the government produced, from its 55 witnesses, 24 admitted felons with a combined 76 total convictions. Of the 31 witnesses who had never been convicted of a crime 9 admitted to illegal drug use during their testimony. Of the government witnesses against Skip, many gave conflicting accounts of his alleged activities the night of the explosion and two placed

him at different locations at the same time immediately after the explosion.

The government's general theory of the case was based upon the old saying "where there's smoke, there's fire." Regarding Skip in particular the government's case consisted of allegations from a total of twelve witnesses. Of those twelve, all admitted they either heard about or felt entitled to the reward, or were testifying in the hopes of receiving leniency on jail sentences. The government's case against Skip and the co-defendants also included testimony from five other "disinterested" witnesses, who only testified about the construction site and the explosion. None of these witnesses
offered any testimony incriminating Skip.

B. The Construction Site

The government began its case against all defendants by eliciting the testimony of five individuals: Kenneth Brown, vice-president of Brown Brothers Construction Company (hereinafter Brown Brothers), the project's general contractor; Norman Collins and James Reynolds, subcontractor explosives experts employed by Brown Brothers to perform the site's rock blasting, operating under the name Mountain Plains Construction; and Robert and Deborah Riggs, security guards hired by the project contractor to guard the site.
71 Highway then ran through the middle of the construction site dividing it into two sections which project personnel referred to as the "east side" and "west side" of the site. Brown Brothers Construction kept its heavy equipment (bulldozers, trucks and "caterpillars") on the west side. On the east side, Mountain Plains kept dynamite and
blasting caps in steel bunkers, and a mixture of ammonium nitrate, diesel fuel and

6

fertilizer ("ANFO"), in two tractor trailers marked on the outside with a sign bearing the words" EXPLO." (2- 421,9-1754). Even though the majority of government.witnesses testified the defendants had in their possession many items which had been stolen from the construction site, according to representatives of Mountain Plains and Brown
Brothers, nothing was ever stolen.

C. Ameriguard Security

Robert Riggs, the owner of Ameriguard Security Company, was hired by Brown Brothers in 1988 to perform surveillance on the site. Ameriguard was a small "mom and pop" operation employing six or seven persons. Among them were Robert Riggs himself, his wife, and his sister Deborah Riggs.3 (3-690). Riggs testified that he, his wife, and his sister would regularly use several fictitious names on their logs to give the appearance the company was much larger and employed many different guards. (3-690). Riggs testified Brown Brothers had experienced losses due to thefts and vandalism.4 (3- 585, 690).

3Deborah Riggs was employed by Ameriguard on a part-time basis in 1988. She testified she had been laid off from Ford Motor Company because she was pregnant (2-412-15) and had received her security training through on-the-job training from her brother and had also taken some community college classes. (2-418). She stated she was unable to take the firearms test because of her pregnancy and therefore could not legally carry a firearm. (2-418)

4Riggs stated his initial assignment was to catch a disgruntled employee suspected by Brown Brothers of vandalism to a bulldozer machine. Riggs described a "sting operation" he performed (3-589) during which he hid behind equipment for several nights while dressed in camouflaged clothing. Riggs testified this sting operation proved fruitless as no activity occurred. (3-59 l) After Riggs' "sting operation" Kenneth Brown decided it would be more cost effective for Brown Brothers to hire Ameriguard to provide "standard" security at the site. (3-591) Riggs described his new duty. as "provid[ing] a visible authoritative presence" in order "to deter undesirable activity." (3-592, 665)

7

However, Kenneth Brown, vice-president of Brown Brothers, testified after Riggs and stated the company equipment at the site had been vandalized on only one occasion prior to the explosion,5 Brown stated there had been no other reported acts of vandalism at the site,6 and that during the entire project nothing was ever stolen from the site. (9-751).
Although Riggs initially provided one guard on the site positioned on the west side, eventually Mountain Plains contracted with him to place a second guard on the east side after they had some "activity." (3-594).7
Riggs testified that approximately two weeks before the explosions, after he and another guard chased two individuals off the east side, they found a set of lock cutters and a cut padlock lying on the ground by one of the "ANFO" trailers. (3-602). Riggs testified he called Norman Collins, president of Mountain Plains, to inspect the site.

5Brown stated that in September or October of 1988, someone had poured sand into the
transmission of one of the company bulldozers. (9-1748-50) Brown stated he believed an employee was responsible for the vandalism. (9-1764-65)

6Brown testified that although occasionally equipment was found with low fuel levels in the
mornings, he attributed the problem to his "fuel man" not doing his job of filling up all equipment at night rather than someone draining the tanks during the night. (9-1758).

725
Riggs testified the activity consisted of the following two: Once, while on the west side, he observed what appeared to be moving headlights on the east side. (3-595). He drove to the east side and followed a Bronco or Blazer-style vehicle off the property. Riggs attempted to get the license plate number, but after several attempts was unsuccessful.. (3-601). Testimony at trial indicated that none of the defendants had a vehicle similar to this description. Riggs testified the other "incident" occurred approximately two weeks before the explosion when Riggs and another guard chased two individuals off the east side. Again, neither of these two individuals were the defendants.

However, when Collins testified about the same "incident,", he stated a storage trailer was found unlocked (9-1772) but the lock found laying on the ground appeared to have been opened with a key. Collins stated that although a few attempted break-ins were reported four to six weeks prior to the explosion, nothing was ever stolen from the site. (9-768). (9-1773).8 
James McReynolds, the Mountain Plains blasting foreman, also testified that one morning, approximately one month before the explosion, he found a trailer door open (9-1779) but it appeared to have been opened with a key. The locks were subsequently changed. (9-1780.) On a prior occasion he had also discovered a hacksaw and crow bar by the trailers but nothing was broken into or vandalized. (9-. 1780). Collins and McReynolds, who had first hand knowledge of, and daily access to the inventory, were insistent during direct and cross examination that no dynamite, blasting caps or "ANFO" were ever stolen from the site (9-1780, 1793) nor was Mountain Plain's equipment ever sabotaged of damaged in any manner. (9-1792).
D. The Evening of November 28-29, t988.

On the evening of the explosions Robert and Deborah Riggs arrived at the site

8Deborah Riggs described an incident involving an individual driving a truck around the
vicinity of the trailers. Riggs testified she was uncomfortable attempting to stop the truck, and merely tried to get the license plate number. (2-438). Riggs could only describe the truck as an older red truck. (2-455). Riggs did not testify about any further incidents or suspicious activity. she was involved in until she recounted the events of the night of the explosion. Again, no defendant had a truck that matched this description.

at approximately the same time and took over security.9 (2-439). Deborah Riggs was posted on the east side. (2-441). Later, Robert Riggs asked her to move to the west side and he went to the east side. (2-442). They conducted three patrols of the entire property, and each time checked the locks on the trailers and dynamite bunkers.10 (2-444). Each time all locks were untouched. After the last patrol, Deborah Riggs went to the west side. (2-445). Subsequently, she radioed her brother and offered him a sandwich. He accepted and parked his station wagon by his sister's truck on the west side. Deborah Riggs got into her brother's vehicle with the five-inch poodle dog she had  brought to work, leaving her keys, a plastic bag containing her wallet, and a gun belonging to her brother Robert, in her unlocked truck. (2-446-48). While in Robert Riggs' station wagon, they reviewed work schedules. (2-447). Deborah Riggs stated that forty five minutes to an hour later, she saw two men by the office trailers, which were located in the median of 71 Highway. (2-457). As she watched them, they went behind the office trailers11 and disappeared from view. (2-458). Deborah Riggs stated

9Deborah Riggs was scheduled to work from 10:00 p.m. until the next morning. (2-438). However, before reporting to work she had received a telephone call from one of the security guards at the site asking Riggs to report to the site immediately. (2-438). Originally, the two guards on duty before the Rigges took over were Kevin LeManske and Donna Constanza. Constanza was scheduled to work a double shift but was relieved by Robert Riggs because she had car trouble. (2-439).

10Deborah Riggs testified she rode with her brother during all the patrols because of her pregnancy. (2- 443).

11During the initial investigation the police recreated the scene by posing as an officer where the Riggs were parked while another officer walked up 71 Highway to the office trailers. Based on that recreation the police determined Deborah Riggs was not able to see anyone walking up the Highway by the office trailers. (18-3380)

her brother had dozed off so she hit his shoulder to awaken him and asked if he had seen the men. (2-460). Robert Riggs testified that after being awakened he drove to the office trailers and investigated by shining his spotlight around and underneath the trailers. (2-461). The two drove up the highway to the bridge and shined the spotlight into the creek and the wooded area surrounding the construction site. (2-461-64). They saw no people or vehicles, in fact Robert Riggs testified he never saw the two men at all that night. (3-653) They drove to a QuikTrip convenience store a short distance away (2-464) and asked the manager if he had seen two men on foot. (2-465). Shortly after the manager told them he had not, Deborah, believing the excitement was over purchased a package of rolls and milk. As she left the store, a woman drove up and ran into the store. (2-465) Almost immediately, the store manager then ran out of the
store yelling that the.equipment was on fire. (2-466).

E. The Explosion

The Riggs testified they sped toward the site, (2-466) saw Deborah's truck on fire and called the fire department.12 (2-467). The first fire truck arrived on the scene a few moments later and extinguished the fire. (2-470). When they arrived at the site, Deborah Riggs looked across the highway to the east side, saw flames, and told her brother "the explosives [were] on fire." (2-469). Another fire truck then arrived on the scene. Robert Riggs testified he had a conversation with the firefighters, described the layout on the east side and the contents of the trailers. (3-633).

12Riggs admitted that she had once intentionally burned her vehicle and collected insurance proceeds. The court precluded defendants from pursuing any further cross examination on that subject. (2-416; 3-555)

10

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Deborah Riggs testified she also spoke with the firefighters, explained the layout on the east side, and told them the trailers contained ammonium nitrate,13 fuel oil and fertilizer. (2-531-‑32, 536). Riggs further testified she also told the firefighter chief who arrived at the scene that ammonium nitrate, fuel oil and fertilizer were stored at the site.
Riggs followed the fire trucks up the hill. Deborah Riggs stated the first explosion occurred when the chief picked up his microphone and was about to communicate to the firefighters what she had just relayed 14(2-478). After the first explosion the Riggs were asked by police to wait to give statements.(2-483). Eventually they discovered the police had left the site and moved to an area further up the highway. The Riggs began driving to this command post when Robert remembered his gun in Deborah's truck. (2-486) He went back to the truck to retrieve the gun while his sister waited for him on the side of the road. The second explosion went off while he was on his way back. (2-488). Riggs then picked his sister up and they went home. The next morning police investigators went to Deborah Riggs' home and accompanied her to the police station to give a statement.
Under cross-examination Deborah Riggs admitted she lied to the police during the initial interview by having said she was not scheduled to work the night of the

13However, all of the fire department witnesses called by the government testified they never heard that term that evening. (4-766,875)

14The dispatch tape indicated the Riggs' first call to report the fire came at 3:40 a.m., the first explosion occurred at 4:08 a.m. and the second at 4:48 a.m. The firefighter chief on the scene testified that during his radio communication with victim Captain Kilventon, Kilventon told him it looked like a magnesium fire which had already exploded. (3-766).

12

explosion but had been there only to give her brother a sandwich. (2-489; 3-583) She admitted she also lied when she told police her brother had been on the east side and she on the west side of the property when she observed the two men by the office trailers. (2-490).
F. The Crime Scene Investigation

Crime Scene Investigator Gary Buchanon testified he throughly searched the site

for evidence the morning after the explosion.15 He returned to the site two days later and collected an empty gasoline can and a padlock that had been blown apart by the explosion (3-887) but did not see copper tubing, extension cords, diamond saws, diamond blades, concrete saws, drill bits or transits on the site.16 (3-892). Buchanon

	further testified the dynamite bunkers were locked and secured. (3-895).

	G. The Search for Suspects

The Kansas City Missouri Police Department and ATF launched a massive

investigation to find the person or persons responsible for setting the fires. Although agent True was still pursuing the investigation into the labor-related suspects, Bryan Sheppard, then 18 years of age, was charged in August, 1989, (18-3404) with six counts

of murder in the deaths of the six firefighters. After five months of incarceration, on December 29,1989, all charges against Bryan Sheppard were dismissed due to

15Buchanon testified he observed three craters caused by the blast, the largest crater measured 53 feet in width and 8 feet in depth, the next crater was 40 feet across and 8 feet deep and the smallest was 20 feet in width and 6 feet deep. (3-880).

16These are some of the items witnesses testified they had either seen some defendants with or heard them say they had stolen from the site that night.

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insufficient evidence. (2-364)

H. Unsolved Mysteries, Rumors, Rewards And Focus On the Sheppards

Bryan Sheppard's initial arrest and charges for murder illuminated suspicion over the Sheppard families.
The explosion was the biggest thing that ever happened in Marlborough and rumors started flying everywhere. (14-2548). Witness after witness testified to the widespread rumors and speculation as to who might have been responsible for the tragedy.17 "Fifty million" rumors were floating around the Marlborough neighborhood about the explosion. (12-2213)i One witness testified that the talk in the neighborhood was that Richard Brown and Bryan Sheppard went to the construction site to steal. (13-2460).
The rumors were initially fueled by the posting of reward posters in the Marlborough neighborhood. Upon the arrival of the Unsolved Mysteries television crews the rumors went out of control. (14-2549) According to agent True, the decision to air the episode on Unsolved Mysteries was to take "one last shot at trying to solve the case," hoping to generate some leads through the media° (17-3135). In preparation for the show, banners were placed along 71 Highway, reward posters were placed throughout the city, predominately in the Marlborough neighborhood; press releases were generated, and in the unprecedented move, reward posters were placed in all

17Virgil Whitt, who testificd against Bryan Sheppard stated that since the explosion there had been a lot of rumors and speculation about different ways the explosion might have occurred and who may have been responsible. (6-1068-70).

14

Kansas and Missouri prisons. (17-3135-39). .

As preparations were being made for the Unsolved Mysteries program, ATF agents and Kansas City Missouri Police officers also began re-interviewing people whom they had initially interviewed in 1988-89. (17-3144) During this time, police arrested Darlene Edwards and charged her with sale of a controlled substance.18
After Edwards' arrest the agents took a video taped statement from her, which focused only on her knowledge and possible involvement in the explosions. The drug charges were used as enticements only. (12-2125) Edwards denied any knowledge of or involvement in the explosions.19 (17-3147) During the interview, Edwards was shown a statement made by another individual which implicated her in the explosion. (12-2135) Two days later, Edwards again spoke with the agents, who this time took a tape-recorded statement. (12-2127). Edwards again denied involvement in the explosion, but said that on the evening of November 28, 1988, Bryan Sheppard and Richard Brown had gone to her house and told her their car had run out of gasoline. She agreed to take them to buy gasoline and drove to the QuikTrip. Darlene stated her boyfriend, Frank Sheppard, was drunk and passed out when she left. She stated she took

18Police had executed a search warrant for a video tape from the home of Darlene Edwards'
stepson, Ronnie Edwards.' (17-3140). Ronnie Edwards spoke to the agents and agreed to assist them in "setting up" his stepmother on a narcotics violation. (17-3140). Ronnie Edwards contacted Darlene, arranged for her to buy crack cocaine for him, and accompanied her to various locations where she purchased crack cocaine. (17-3224) Based on this operation, Darlene Edwards was arrested for sale of crack cocaine, on February 17, 1995. (l 7-3147,3224).

19Darlene Edwards offered to discuss the crack cocaine sales with the agents arid they told her they were not interested in discussing the crack-all they were interested in was the death of the firemen. (12-2125).

15

Sheppard and Brown to buy the gasoline and then dropped them by at the site.

 Edwards said she became suspicious, told Sheppard and Brown she wanted no part of what they might be doing and drove home alone. When she returned home, she heard a massive explosion. (SSA3-10-48)
At no time during the interview did Edwards implicate Skip Sheppard in any way. In fact, she never mentioned his name. This tape was played for the jury with the names Bryan and Richard redacted out. When Skip attempted to ask the agent at trial if Edwards had ever mentioned his name during the interview, the court refused to allow the question. (12-2159) Skip Sheppard contended the rulings deprived him of powerfully exculpatory evidence which would have been available had the court granted a severance.
After posting reward posters throughout the Kansas and Missouri prison system, inmates began crawling out of the woodwork offering to provide assistance to the government in exchange for leniency on their sentence and/or for a share of the reward money. The banners and reward posters placed throughout the Kansas City metropolitan area, coupled with the airing of "Kansas City's Unsolved Mystery," prompted many individuals to call ATF to claim they had knowledge of events that occurred six or seven years earlier. The bulk of the government's case at trial consisted of witness after witness who claimed to have had a conversation with one or more defendants during which incriminating statements were allegedly made.20

20Due to the sheer number of government witnesses and the voluminous transcript, space, will only permit discussion of those witnesses who testified against Earl Sheppard. However. Earl Sheppard adopts herein by reference the Statement of Facts presented in each of his co-

III. Witnesses against Skip Sheppard

The government began its specific case against Earl Sheppard with testimony from John Barchers and his wife Peggy. John Barchers claimed to have been a long-time friend of the Sheppard family. John Barchers claimed he was employed as a cashier at an Amoco gasoline station but during cross examination admitted he had been fired two days earlier. (5-969, 982). Barchers also admitted he plead guilty to possess!on of marijuana in 1995, and received 3 years probation. (5-970)
John Barchers testified he had purportedly had a conversation with Skip, Frank and their sister, Diddi,21 a few weeks after the explosion in 1988, but subsequently admitted he did not tell investigators about the conversation until February 19, 1995, shortly after he watched Unsolved Mysteries and heard of the reward. (5-989-91)
Barchers testified the explosion woke him out of a sound sleep, (5-975) and he was forced to evacuate his home for a few days because the explosion broke a gas line in the neighborhood. (5-975) He claimed that about two weeks to a month after the explosion Frank, Skip and their sister Diddi came to his house in the early morning hours, knocked on the bedroom window and awakened him and his wife.22(5-978) The three appeared to be intoxicated and came in his home to "party." (5-976) While Barchers and his wife smoked marijuana with the Sheppards, (5-977) they discussed the

defendant's briefs in this consolidated appeal.

21"Diddi" was the nickname used by Naomi Earlene Sheppard, sister of Frank and Skip.

22John testified in the grand jury that the conversation occurred 2-3 days after the explosion, but at trial admitted that could not have been fight, as the entire neighborhood was evacuated due to the gas leak at that time. (5-986, 993)

16

17

explosion. When Barchers asked if the Sheppard house suffered damage due to the blast (5-977) Skip answered "no" and stated he (Skip) had been at the QuikTrip convenience store by the blast site. When asked why, Skip allegedly tapped his sister Diddi on the back of the head and said "if she had done her job none of this would have happened." (5-978) At that point, according to Barchers, Frank Sheppard stated the fire was set as a diversion and they did not know there were explosives in the "dump truck." Barchers testified Frank said the firefighters were stupid for rushing in not knowing what was there. (5-978) Frank also allegedly said he had been at the QuikTrip shortly after the explosion and spoke to a guard about the explosion. (5-999)
John Barchers testified before the grand jury that Frank told him they were there to get metals out of an evacuated house on the site and to steal construction equipment. (5-988) During cross examination Barchers admitted Frank Sheppard never said he or anyone had been to the site prior to the explosion or had anything to do with the explosion. (5-1001)
Peggy Barchers, testified at trial and during cross examination also admitted she had plead guilty to possession of marijuana in 1995, "and was placed on two years probation. (5-1013) She also admitted that in 1996, she plead guilty to larceny and again received two years probation. (5-i014). Like her husband, she admitted she was aware of the reward offered. (5-1027)
Peggy Barchers' recollection differed from her husband's testimony in some material aspects. When she testified about the conversation with the Sheppards she stated she remembered two visits from them, not just one. (5-1017) According to Peggy

Barchers, the first visit was shortly after the gas leak was fixed and she and her husband had returned home. (5-1017). She testified that during that visit, they all sat around and smoked marijuana and discussed things other than the explosion. She said the explosion was not mentioned at all during that visit. (5-1017)
She testified that a few weeks later the Sheppards came to her house in the middle of the night, and they all smoked marijuana together23 (5-1023) but that none of the Sheppards ever said they were involved in the explosion. (5-1026, 1029). According to Peggy Barchers, Frank Sheppard said he heard the fire was a diversion. (5-1019) Peggy Barchers said Skip then kidded with his sister Diddi, "smacked" her on the back of the head and in a joking manners said she "didn't do her job." (5-1031) Peggy Barchers stated that during the conversation Frank Sheppard volunteered that "the people that did it was there for the metal or the copper and that's all they wanted. That was for them to go to sell for money and that the fire was set so the fire fighters would go to the fire while they was doing the stealing." (5-1032) Peggy Barchers admitted that during these alleged conversations, neither Frank, Skip or Diddi ever said they had any involvement in the explosion. (5-1028)
John Barchers' sister Lisa Landon also testified. She recounted an incident she claimed occurred in the Sheppards' own home two weeks after the explosion. Landon stated that two weeks after the explosion, she accompanied her mother to the Sheppard

23Peggy testified that she and John smoked marijuana by themselves earlier that night. (5-1023) 18

19

home for dinner.24 (5-1038) Landon stated that while the dining room she and her mother overheard Frank and Skip "talking and joking" in the living room. When asked what was going on they allegedly responded they "knew what was in the trailers [and] wanted to see what would happen" (5-1038) During cross examination Landon admitted that neither Skip nor Frank ever said which trailers they were talking about, but she assumed they were the ones that exploded at the construction site because she "had heard it on television." (5-1040, 1042) Also during cross examination, Landon testified she heard nothing said about anyone stealing copper, torches, CB radios, walkie talkies, or stealing construction equipment in order to buy drugs. She stated no one ever mentioned Diddi Sheppard's name. (5-104446, 1048) Landon admitted she did not come forward with the information until after having seen the Unsolved Mysteries program and learning of the $50,000 reward; seven years later. (5-1043)
Stephen Kilgore, an "electronic engineer" with a GED education, who at age 15 accidently shot and killed Phillip Sheppard, the youngest brother of Frank and Skip testified for the government. (7-1262, 1264, 1282) Kilgore testified Phillip Sheppard was killed in 1971, and that for the following 20 years he had no contact with the Sheppard family. (7-1264) Kilgore testified he made contact with Mrs. Sheppard in 1991 because he wanted to buy a headstone for Phillip's grave. On his first visit only Mrs. Sheppard and Diddi were present. (7-1265)
Kilgore claimed he made a return visit to the Sheppard home later that summer

24Mrs. Sheppard testified that Lisa and her mother never came to her home for dinner. (18-  3490)

2O

and during the visit gave Skip and Frank a ride to a lawn mowing job in the neighborhood.25 (7-1266) While in the car, Frank allegedly told Kilgore they knew a security guard at the construction site that let them steal "anything that wasn't nailed down." (7-1269, 271) According to Kilgore, Frank told him that while they were rummaging around in a shed on the site, Skip tripped over a lantern, set the shed on fire, (7-1271,1302) and they ran from the site. Kilgore said Frank then told him that when the explosion occurred they were further away by the Four Acres Motel. (7-1271 Kilgore testified Frank also showed him items stolen from the site hidden in a laundry room which had been "added-on" behind the Sheppard garage.26 (7-1272) Kilgore said the items included extension cords, saws, drills, jack hammers, two Motorola radios, concrete saws, acetylene torches, hammers, and sledgehammers. (7-1277-78)
Kilgore testified Skip and Frank told him they knew one of the security guards at the site, LeManske, who allowed them into the site to steal. (7-1301) Kilgore further testified that on the night of the explosion they set LeManske's truck on fire for insurance money. (7-1301) Kevin LeManske testified that he had never met the Sheppards and never allowed anyone into the site to steal. (18-3464) Moreover, Deborah Riggs truck was burned that night, not Kevin LeManske's.
On cross examination, Kilg0re admitted having given a tape recorded statement to Mark Reeder, a court appointed investigator for Richard Brown. (1284). During the

25Mrs. Sheppard testified to her knowledge Skip and Frank never went anywhere with Kilgore, because they didn't like him mad blamed him for the death of their brother. (18-3490)

26During Mrs. Sheppard's testimony a videotape of the Sheppard home was played which proved there was no "add on laundry room" behind the garage. (18-3496)

conversation Kilgore told Reeder the stolen tools and equipment he observed in the Sheppard residence had been recovered by police through the execution of a search warrant. The statement was untrue. (7-1292-94) However, when counsel attempted to cross-examine Kilgore on his statement, the court refused to allow counsel to utilize Reeder's tape-recorded statement and stated: "1 don't have any confidence in these people like Reeder, so I've got to tell you, I'm going to be very suspicious of anything that generates out of Reeder's contact with this case... I think I'll sustain the objection on the grounds that it's beyond.the scope.''27 (7-1294) The court stated it was concerned about work generated by "independent... professional investigators," but made it clear that the concern did not extend to investigators employed by the government. (7-1299) The comments by the court, and the continual denial of cross-examination on this issue, resulted in the defense filing a Motion for Mistrial or Recusai of Judge the next day. (R238) The court summarily denied the motion stating: "... it is not well-taken." The court explained its concern with defense investigators was because they "are not subject to the supervision of the Supreme Court of Missouri or of thiscourt. They're not subject to the same constraints of control and professional constraints as lawyers are, and that's the reason for my expressed skepticism." (8-1522-23) Despite the court's expressed concern over the integrity of defense investigators, the government was allowed to use another witness interview report prepared from this same investigator to cross examine a defense witness. When counsel requested a mistrial due to the disparate rulings, it was denied. (18-3606)

27The government never objected to this question, only the court on its own motion. (7-1292).

21

22

t
Douglas Bayliff, Tracy Ownby and Megan Williams all claimed to have attended a

party during which Skip Sheppard made admissions regarding his involvement in this case.28 Bayliff, however, had extreme difficulty remembering what he told police during his initial statement made in September 1989, or even the fact that he was later interviewed by Department of Labor investigators in 1995. (7A1398,1402). On direct examination Bayliff testified he overheard Skip say "he almost got some dynamite," and that "they had started a fire to distract a security guard, and the fire got too big." (7A-1384) Bayliff also claimed Skip said he drove to the site and set a trailer on fire. (7A-1384) However, when confronted with his 1989 videotaped statement to police during which he stated Skip said the fire was started in the security guard shack, Bayliff stated he could not remember giving that statement and said, "there is a lot of things I can't remember.'" (7A-1391, 398). Bayliff also could not remember having told the police• investigators Skip had said he saw the security guard on foot. (7A-1398)
While Bayliff claimed he only overheard conversation between Skip and another unknown Mexican individual, Tracy Ownby testified the conversation was directly between Bayliff and Skip, and that she never saw a Mexican that night. (7A-1383,1417,1423) Ownby testified she overheard Skip tell Bayliff he was there to steal items and ran when something exploded. (7A-1418) She testified Skip did not say anything about a fire, nor did he say anything about dynamite. (7A-1422)
Megan Williams testified she had also been present at the party that night.

28At trial, the three testified the party, was at Lee Ballanger's house although Bayliff had t01d police the party was at his own house. (7A-1387)

Williams testified she overheard a direct conversation between Bayliff and Skip and Skip said he was at the site of the explosion.29 (7A-1429) Williams admitted that when she gave her statement to police in 1989, they informed her of the available reward money. (7A-1434)
All three witnesses admitted drugs and alcohol were prevalent at the party that evening, however, each had different recollections of the varying degrees of intoxication of their own and others' condition.
Carl Nettles was the first "jail house informant" to testify against Skip. Nettles admitted to three prior convictions: Receiving stolen property in 1982, for which he was' sentenced to two years imprisonment; passing bad checks in 1986 or 87, for which he was sentenced to five years imprisonment; and.attempt to possess methamphetamine for which he was sentenced to six and one half years. (8-1451-52)
Nettles claimed he met Skip in 1996, while both were incarcerated in the St. Clair County jail and shared the same cell block. (8-1454) Nettles said Skip told him he went to the site to steal tools or equipment. Nettles said Skip told him a trailer was set on fire to cover up the thefts. Nettles said Skip did not say who set the fire (8-1459-60, 1469) but that the gas used t0set the fire came from QuikTrip. (8-1460) Nettles testified Skip was going to say he was asleep in his mother's back room or at his brother -in- law's house when the explosion occurred. (8-1462) Nettles admitted he offered this information in the hopes of receiving a lenient sentence. (8-1463)30

29Williams also did not see any Mexican that night. (7A-1429)

30At the time of his testimony, he had not received any help on his sentence.

23

24

During cross examination, Nettles claimed Skip told him they stole a large quantity of tools from the site including jack hammers and generators. (8-1469)
John White, another "jail house informant" had been convicted of mail fraud as well as of five counts of threatening a witness. He admitted during cross examination to having violated his conditions of supervised release for promoting prostitution. White considered himself a "jail house lawyer" and claimed Skip had sought legal advise from him. (8-1527-28,1549-53) White said Skip told him the events of the night of the explosion were as follows: Skip and another person drove to the site, positioned themselves by the bulldozers and waited for the guards to leave the area by the trailers. (8-1556) While waiting he observed the women who had arrived with the security guard leave the site. (8-.1558) Later they were joined by other people and continued to wait for the guard to leave. Eventually they decided to create a diversion to detract the guard away from the site they wanted to "break into." Two people created the diversion by burning a pickup truck while Skip attempted to break into the trailer by using a small crow bar. Skip became very upset when he was unsuccessful so he started a fire arid left the area of the trailers (8-1534-36) but remained close to the site while the firefighters arrived. Skip witnessed the explosion then went to his brother's house, but would use his mother as his alibi at trial. (8-1537,1559) White also stated Skip said ne stole hand tools, an acetylene torch, and a transit from the site. (8-1554-57)
The last jail house informant to testify against Skip, Michael Whitelaw, was serving a 25 year sentence for distribution of cocaine and unlawful use of a firearm (8-1577) Whitelaw's attorney was present in court during his testimony. Whitelaw testified

25

his attorney was filing a2255 motion and the government had agreed to "look at" the motion based on the testimony he agreed to provide against Skip Sheppard. (8-1631-32) Whitelaw said Skip told him the night of the explosion he had been driving around drinking and went to the site. Whitelaw claimed Skip told him "they" were trying to "pin the explosion on him," but would never have enough evidence to prove it. (8-1582) Whitelaw said Skip mentioned a fire, but did not say how it was started. (8-1583)

Whitelaw stated he did not believe Skip's story at first because people in jail often make up stories to build themselves up, (8-1583) but came forward through a letter to the United States Attorney after he read a newspaper article about the explosion. Although the government introduced the article purportedly read by Whitelaw, which did not mention Skip Sheppard, Whitelaw's letter to the United States Attorney began by stating: "In the last week's paper; I saw an article on Earl Sheppard, A.K.A. Skip." (8-1589-1593) Whitelaw testified that during their conversations Skip did not mention

stealing anything from the site, nor did he say how or who started the fire. (8-1597)

Patty Smith claimed to be have been Skip's girlfriend. Smith said she met Skip in August of 1990. (8-1474) and was his girlfriend until October of that year when the

relationship ended after he beat her and she called police. (8-1498-1501) Smith claimed to be present on three occasions when the subject of the explosion came up. Smith stated on one occasion Skip said he "didn't do it" but "would never tell who did." (8-1476) Smith claimed the second time she was at the Sheppard home and Skip's mother

told her she did not know "who she was dating and what he had done." Smith claimed Skip's mother told her Skip had killed the six firefighters. Smith stated that Skip then

72)

looked at his mother, laughed and told her to "shut up.31 (8-1480) Smith said Skip then told her it was an accident and that he had buried a crate of dynamite stolen from the construction site in the crawl space under the house but police had been unable to find it each time they had searched.32 (8-1481) Smith testified she had gone to Sheppard's home a few weeks later and heard Frank say he had been at the site a couple of nights before the explosion stealing tools, and that on the night of the explosion he had sent his sister Diddi down the hill to set the fire. (8-1484, 1520) Smith claimed Frank made these statements while he was sitting at a table in the kitchen. (8-1482) However, the videotape of the Sheppard residence demonstrated that there was no table in the kitchen. Moreover, the kitchen was not big enough to accommodate a table. (18-1967-

Smith testified she had called the police after these conversations but later admitted she did not call to tell them anything about Skip and Frank's alleged involvement in the explosion. (8-1490-92) Smith testified she again contacted the police in 1995, to provide information about the alleged conversations with the Sheppard brothers. Smith acknowledged she had become aware of the reward. When asked if she applied for the reward she replied: "No, I didn't. How do you apply for a reward?" (8-1513)
Carolee Smith, lived next door to the Sheppards., Smith testified the blast

31Mrs. Sheppard denied ever making these statements and in fact, testified that Skip never dated Patty Smith. (18-3500)

32The police never searched the Sheppard residence, moreover the videotape of the residence demonstrated that the crawl space was less than three feet deep.

26

27

awakened her and after checking her house for damage, she heard a vehicle, looked out the window, saw four people exit the Sheppard truck and walk from the driveway toward the back of the Sheppard home.(13-2486-98) Smith said she recognized Skip and Frank, but although she did not recognize the other two individuals, they were not their co-defendants whom she knew also.(13-2505) Smith testified the truck remained in the driveway the rest of the night and she did not see Frank or Skip leave the house that night.(13-2497) She estimated the truck pulled into the driveway 5-10 minutes after the first explosion. Smith also confirmed that contrary to Kilgore, there is no '"add on laundry room" on the back of the Sheppard home. (13-2510)
Smith testified she never observed a black truck drive into the driveway that night• (13-2507) She also acknowledged she never called police with the information, but stated She did provide it to a repair man who called the police• (13-2509)
Lonnie Joe Pugh, next door neighbor of Diddi and her husband Larry Baker. testified the first explosion awakened him and his girlfriend• They both then went outside to see what had happened.(15-2808) Pugh testified he saw Larry Baker outside and spoke with him. Moments later a dark pick-up truck pulled up, Skip Sheppard got out of it and entered the Baker residence: Pugh said he did not know the other two occupants of the truck. (15-2809)
On cross examination, Pugh admitted that in 1989, police had taken him to the station, read him his rights and told him he had been implicated in this Crime. (15-2809) Pugh denied involvement and told police after the first explosion awakened him he went outside. Pugh said he saw nothing unusual and returned to bed. (15-2813) He stated

28

that a short time later the second explosion occurred and he again looked outside and saw nothing. (15-2813) Pugh again spoke to police investigators in 1996. During that interview, Pugh told police that after the first explosion he looked out his window and saw Larry Baker and some of the neighbors. (15-2817) When the police asked him what time Skip arrived, Pugh told them he never saw Skip that night. (15-2817) However, it was not until during his grand jury testimony, that Pugh testified he saw Skip Sheppard in the time between the two explosions. (15-28i8) Pugh acknowledged changing his story after agent True told him a religious and well respected in the community was saying Pugh saw Skip Sheppard after the explosion. (15-2822) Pugh believed the person True was eluding to was his employer's wife, even though he stated he had never discussed the incident with her. When confronted by True, Pugh said "maybe" he saw Skip that night. (15-2823) True then requested Pugh give a statement at ATF offices. Pugh contacted an attorney to accompany him to True's office (15-2823) but True refused to allow the attorney to be present during the interview. Finally, Pugh admitted that his girlfriend, whom he testified accompanied him outside his house that night, never saw Skip Sheppard. (15-2825)
Liza Harrigan, Skip's girlfriend at the time of the explosion, testified that on the night of the explosion she and Skip were at the Baker residence. (18-3468) Harrigan testified she went to bed with Skip at approximately 1:0"0 a.m. and Skip awakened her around 6:00 a.m. (18-3470) When she awoke Skip and the entire Baker household were talking about an explosion and checking the house for damage. (18-3470) Harrigan testified that to her knowledge Skip never left her side that night and, like the Bakers.

did not know what caused the explosion or even what exploded. (18-3470)

Harrigan told the jury she met with the federal agents investigating this case on several occasions over the past 8 years and always thought she would be testifying for the government. (8-3471)
Summary of Argument

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 failing to give an alibi instruction as that instruction was supported by the law and the evidence.

3O

I. THE TRIAL COURT ERRED IN FALLING TO GRANT A SEVERANCE, AS THE
JOINT TRIAL RESULTED IN NUMEROUS VIOLATIONS OF THE RULE ANNOUNCED

IN BRUTON V. UNITED STATES, PREVENTED DEFENDANT FROM CONDUCTING APPROPRIATE CROSS EXAMINATION, AND DEPRIVED HIM OF PRESENTING POWERFUL EXCULPATORY EVIDENCE, ALL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO CONFRONTATION AND DUE PROCESS OF LAW RENDERING 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 severe prejudice to defendant, warranting a new trial in which he is tried

separately.

B. Discussion

1 Violations of Bruton v. United States

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

31

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 replacement 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 pronoun," would violate the Sixth Amendment, if other evidence allowed the jury to infer who was the "someone." 481 U.S. at 211 n.5.33
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

33Redaction 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. 15. 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 (I 1th Cir. 1991); United States v. Petit, 841 F.2d 1546 (11th Cir.l.l 1988); Un'ited States v. Washington, 952 F.2d 1402 (D.C. Cir. 1991).

32

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." Id. 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 "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.34 In fact, on several occasions the government itself used the term "they"

34Thefollowing page cites are just some examples of the numerous Bruton violations that infected this entire Trial: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

 

33

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 fires... "(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 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

34

"solution to the dilemma" was far from acceptable and was in fact unconstitutional.35

Rosemary Quiroz was called by the government to testify to admissions allegedly made by Darlene while they were both confined in CCA. Thus, Quiroz's testimony was supposedly admitted only against Darlene. However, despite the government's assurances that they had resolved the Bruton issue, Quiroz's testimony consisted of repeated Bruton violations resulting in clear prejudice to defendant. In response to a question as to how the conversations came up, Quiroz stated Darlene had seen a news report on TV or read an article in the paper regarding this case which Quiroz believed related to Skip Sheppard and Darlene told her it was "an accident." (9-1680) The Court instructed the jury to disregard "any reference to anybody else" and denied defendant's Motion for Mistrial and Severance. (9-1681) Quiroz, then testified that Darlene told her she took "them" to get gas; that she dropped "them" off; and that Darlene then went home and was at home at the time of the explosion. Quiroz further testified that "they" had gone to the construction site to steal, and that "they created a diversion to cover up what they were doing." (9-1682) During her testimony Quiroz specifically stated "Skip"
and "Frank," which defendant asserts led the jury to the inescapable conclusion that these were the two people Darlene told her she took to QuikTrip. (9-1681)36 The

35Space 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 Skip been severed the jury would not have heard any of the following testimony.

36Standing alone these comments constitute a Bruton violation, however the violation is more egregious as Darlene's statement to law enforcement was that she took Richard and Bryan to get gas. Thus, the government not only violated Bruton, but knowingly created the false inference of involvement that is at odds with its own evidence.

following objection was made to this testimony:

PETERS; We are taking an awful lot of time and based upon the representations of the government these witnesses would be Brutonized and the jury would never hear the names of the other defendants. This is now the fifth time that has been violated and it has created the impression of facts that not only are inadmissible but the facts the government knows to be incorrect. She could not take Frank and Skip to QuikTrip.
HUNT: Based on his argument, we renew our motion for severance that was denied.

(9-1687). The Court denied the objections and motions for severance stating: "You guys

are a little paranoid about all this." (9-1688). On cross examination, Quiroz again

repeated that Darlene allegedly told her she took "them" to get gas, took "them" to the

site and dropped "them" off. (9-1696). When questioned about the different versions

told to her by Darlene, Quiroz responded: "she would tell us about the gas, how she

went to get the gas and different things she did with the other defendants." (9-1697)

(emphasis added). Again a mis-trial was denied and the jury instructed to disregard.. (9-

1698-99). On re-direct the government affirmatively told the jury the "neutral pronouns"

referred to Skip and Frank by asking the following questions:

Q: Then also when Mr. O'Connor came up to speak to you at the various jails, did he tell you he was representing Bryan Sheppard?
A Yes.
Q Do you know anything about Bryan Sheppard?
A No.
Q Mr. OSGOOD, who was just asking you questions, he represents Richard Brown, do you know anything about Richard Brown?
A No.

(9-1732). Defendant immediately moved for a mis-trial and severance, which the Court

denied stating:

Well, it is a function of the artificiality of the rule and I have already

35

expressed myself and how much I dislike having to try to change history and make it fit with what this rule dictates. And we will do what we can but lain not going to tamper with this evidence just because there is a rule out there called Bruton.

(9-1738-39)The government then used the fact that Frank and Skip are brothers,

through its witness Lorena Deardorff, in violation of Bruton, to incriminate Skip in an admission allegedly made by Frank. Deardorff, who worked at a local convenience

store, testified to a conversation she allegedly had with Frank Sheppard after the

explosion. During that conversation, Frank allegedly told Deardorff someone

"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 started partying some more and just getting drunk more."

(7-1368) Deardorff was then asked if Frank told her why he didn't turn himself in and

she replied:

A. I said, well, why didn't you call the police or, you know, turn them in or whatever. And he said, "I can't turn in my family, my friends."

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

(12-2314). 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 that he knew all the defendants the government asked: "Did he say he went with other people?" And Butner replied: "Right." (2215-18)
Finally, in clear violation of the rule announced by this Court in Garcia the government and the court advised the jury the redacted names were available to the prosecution, but they were purposely omitted. During the testimony of Bridget Dornhoffer the court instructed the jury: "the reference to other defendants is not appropriate by this witness." 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
know if I can say this.
Q: Be careful
Court: Don't name anybody else. You can just say anther 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 Skip 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 and within the bounds of the Constitution. The government, in its Motion in Opposition to Defendant's Motions for Severance, stated severance in this case would

not be "fair" 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 can not supersede the defendant's constitutional right to a fair trial.
Defendant's entire trial was infected with prejudicial Bruton violations. The District Court's remedy of occasionally limited instructions clearly was insufficient to cure the problems. In fact, a review of the transcript indicates the District Court's extreme displeasure with having to apply the Bruton rule to ensure that defendant's constitutional rights were protected. The following quote is just one example of the Court's attitude toward the Bruton rule:
COURT: ...We are trapped by the U.S. Supreme Court. I can't do anything about that. I am not going to violate a chair rule of the Supreme Court just because I think it is foolish.

(2084-i 1)

2. The Failure To Grant A Severance Limited Defendant's Ability to Conduct Effective Cross Examination

The sixth amendment guarantees a criminal defendant the right to confront

witnesses. Central to this fundamental right of confrontation and the right to conduct an effective defense is the opportunity to-cross-examine government witnesses, recognized by the Supreme Court as "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). As the Court said in Barber v. Page, 390 US. 7t9, 725 (1968), "The right to confrontation is basically a trial right. It includes both the opportunity to cross-

examine and the occasion for the jury to weigh the demeanor of the witness." Although

the trial court retains discretionary control over the course of cross-examination, Alford

v. United States, 282 U.S. 687 (1931), its "wide latitude in the control of

cross-examination 'cannot ... justify a curtailment which keeps from the jury relevant

and important facts bearing on the trustworthiness of crucial testimony." Gordon v.

United States, 344 U.S. 414,423 (1953).

In the case at bar, the fact that the defendants were tried jointly prevented

Defendant from conducting an effective cross examination, as that cross examination

would have violated the constitutional rights of his co-defendants. For example, when

cross examining witness Douglas Bayliff, counsel sought to impeach him with his prior

video taped statement in which he admitted to discussing the reward with Ownby, prior

to contacting the police. (SSA-70) During thai cross examination the following occurred:

O'CONNOR: Can we approach?
COURT: Yes.
(Proceedings out of the hearing of the jurT.)
BECKER: They ought to pick their quotes more carefully.
COURT: Why are we here?
O'CONNOR: He is mentioning the nephew; the nephew being Bryan. COURT: I really hate this business of rewriting history.
O'CONNOR: Can't we have a general neutral pronoun instead of the nephew, use something that is neutral.
COURT: That is what I would rather not have to do 	I am going to sustain
the objection.

(12-1394-96). Thus, while the government could use redacted statements in order to

get in admissions, the defense was precluded from using that same method in order to

conduct effective cross examination and elicit crucial impeachment evidence of the

witness' motive to testify.

40

Another instance of denial of cross examination occurred during the cross examination of Agent Lett regarding the taped statement of Darlene. Counsel was precluded from asking if she mentioned Skip anywhere in that statement, as it would violate the rights of Richard and Bryan. Defendant asserts the denial of his Motions for Severance denied him effective cross examination, warranting a new trial.
3. Denying Defendant Severance, Deprived Him of His Constitutional Right To Present Exculpatory Evidence

Prior to trial, defendant moved for a severance so he could introduce Darlene Edward's statement in its entirety. Darlene's statement never mentioned Skip's name and in no way inculpated him in this crime. In fact, defendant asserts the tape was exculpatory. However, because of the Bruton rule the statement was played for the jury in a redacted form. Instead of using the names "Richard" and "Bryan" "neutral pronouns" such as "they" were substituted. (A3-49). To further compound this error, the court denied counsel asking the agent if Darlene at any time during her statement ever mentioned Skip's name, as it would unfairly draw attention to Richard and Bryan. (12-2159)
Defendant asserts this situation mandated a severance in which either the statement would have been played in its entirety or not at aii. In United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), the court was faced with a similar situation. In that case a co-defendant's statements exculpated the defendant. The Court of Appeals ruled the trial court committed reversible error in denying severance, stating it "should have been clear at the outset that a fair trial for the [defendant] necessitated providing

him the opportunity of getting the.., evidence before the jury, regardless of how we might regard the credibility of the witness or the weight of his testimony." Id. At 898. Likewise, in order to provide defendant a fair trial, he should have been entitled to present this exculpatory evidence. See also United States v. Alvarado, 882 F.2d 645, (2d Cir. 989), cert denied, 493 U.S. 1701 (19),(court recognized that under the rule of completeness, the portions of a non-testifying co-defendant's statement which tended to exonerate a specific defendant would be admissible.)
This Court has held that the "rule of completeness" is violated when a statement in its edited form, "while protecting the sixth amendment rights of a co-defendant," effectively distorts the meaning of the statement or excludes information substantially exculpatory" of the non-testifying defendant. United States v. Smith, 794 F.2d 1333, 1335 (8th Cir. 1984); see also United States v. Nagib, 56 F.3d 798 (7th Cir. 1995 (co- . defendant's change of plea hearing which tended to exculpate defendant was admessible in drug trafficking prosecution under statement against penal interest theory); United States v. Thomas, 571 F.2d 285 (5th Cir. 1978) (co-defendant's statement exculpating defendant was admissible as a statement against penal interest).
Bruton errors permeated this entire trial resulting in severe prejudice, mandating a new trial.
II. THE COURT ERRED WHEN IT REFUSED TO GIVE DEFENDANT'S ALIBI
INSTRUCTION, AS THAT INSTRUCTION WAS SUPPORTED BY THE EVIDENCE.

A. Standard of Review

This issue involves mixed questions of law and fact, subject to a de novo

42

review. United States v. Duke, 50 F.3d 571,576 (8th Cir. 1995).

	B. Discussion

The government presented evidence from two witnesses, who gave contradictory accounts of Skip's whereabouts immediately after the explosion. Carolee Smith testified she observed Skip arrive at his parent's home 5-10 minutes after the first blast.(13-2497) While, Lonnie Joe Pugh testified that at this same time, he saw Skip pull up in front of his house in a black pickup truck, occupied by two other unknown individuals.(15-2809) According to, Pugh, Skip exited the truck and walked into Larry Barker's house. Id.
To counter this evidence, Skip presented testimony from his girlfriend Liza Harrigan, who testified that Skip was asleep next to her in bed the entire night and never left. (19-3469-70) Thus, defendant's theory of the case, was that Skip was with his girlfriend the entire night, went to bed with her and never left, while the government's theory was that he was present at the site and returned either to his mother's house or to Larry Baker's house immediately after the explosion.37
At the jury instruction conference, Defendant offered the following instruction which comported with his theory of the case and the evidence adduced by him to support that theory:
	One of the issues in this case is whether defendant was present at the
	time and place of the alleged crime. If, after considering all the evidence,
	you have a reasonable doubt that defendant was present, then you must
	find him or her not guilty.

37During opening statement the government stated all "five defendants drove several vehicles

to the site.'" (2-353).

,

(21-3745-47) This instruction was Eighth Circuit Pattern Jury Instruction No. 9.07, and thus it was an accurate reflection of the law. Moreover the instruction was supported by the evidence, United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979). That instruction was denied by the Court. Defendant asserts the denial of this instruction denied him his constitutional rights to due process of law and a fair trial.
Defendant has a constitutional right to submit instructions supporting his theory or the case or defense, if those instructions are supported by the evidence. It is black letter law that an "alibi" is one theory of defense which may be submitted to the jury upon a proper request, if there is a foundation in the evidence, and when the defendant's presence at the scene of the crime is necessary for conviction. United States v. Webster, 769 F.2d 487,490 (8th Cir. 1985). Even if the district court felt Defendant's alibi evidence was weak, he is still entitled to an instruction. United States v. Anderson, 654 F.2d 1271, 1270 (8t" Cir. 1981).
In Anderson the court found the failure to submit an alibi instruction was not reversible error because defendant was charged with conspiracy and his personal presence at the scene was not necessary to sustain a conviction. Id. at 1270. However, this case was not charged as a conspiracy. Moreover, the government's theory, as evidenced by the testimonythey presented to the jury, was that Skip was present at the scene and played some role, although unknown, in setting this fire. Thus, under the government's theory presence at the scene was an element of the crime.
Defendant asserts this case is similar to United States v. Magena, 450 F.2d

44

511 (8th Cir. 1971), in which this Court reversed a burglary conviction when the district court failed to give a requested alibi instruction. In that case, this court held it was unclear as to whether tile jury convicted the defendant on theory of personal participation or merely aiding and abetting. In that case, this Court held the defendant

was entitled to have the jury instructed on his theory of defense.

In the instant case, although it is unclear just what the governrnent's theory Was, it is clear their theory encompassed all defendants being present at the scene. (2-353) Therefore, just as the defendant in Magena, defendant was entitled to an alibi instruction. Consequently, defendant's conviction must be reversed and his case remanded back to the district court, for a new trial.
II1. THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL, AS THE GOVERNMENT FAILED TO ADDUCE SUFFICIENT EVIDENCE TO PROVE DEFENDANTS GUILT BEYOND A REASONABLE DOUBT, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

A. Standard of Review

When the Court of Appeals reviews the sufficiency of evidence it must consider the evidence in the light most favorable to the verdict, giving the government the benefit Of all reasonable inferences thatcan be drawn from the evidence. United States v. Darden, 70 F.2d 1507, 1517 (8th Cir. i995). A conviction is reversed for lack

of sufficient evidence only if no construction of the evidence exists to support the jury's

verdict. United States v. Darant, 119 F3d 1322, 1326 (8t" Cir. 1997).

B. Discussion

There were 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 (1983). 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 independentevidence that the offense has been committed". Sansone vs. United States, 344 F.2d 287, 292 (8th. Cir. 1964). 38
In the instant case the out of court statements allegedly made by Skip not only lacked corroboration but were directly refuted by the physical evidence and undisputed facts adduced by the government. Eventhe District Court, in its order defining defenaant's motion for New Trial, acknowledged:
i) No physical evidence linked defendant to the scene; (BB-38)

2) There were no eye witnesses

3) Many of the confessions were inconsistent in their explanations of various details; and
4) Each defendant's participation was, largely undefined..

(SSA-60). In fact the government concedes there are no eyewitnesses, no physical

38Defendant asserts the court erred in even allowing the jurv to hear tile uncorroborated staterooms, which is a question of law subject to plenary review. ,Defendant adopts tile arguments made by his co-defendants in their brief on this issue.

site

evidence and that its entire case is "about admissions." (2!-3748) However, the "admissons" adduced by the government are not only inconsistent with each other, they were totally refuted by the uncontroverted evidence regarding the construction

For example, although John and Peggy Barchers admitted neither Frank nor Skip ever admitted any involvement in setting the fires (5-1001, 1026, 1029) they did testify about stealing metal and copper. (5-988,1032) Itis undisputed there were no metals or copper at the site, nor were any metals or Copper stolen. (3-892, 9-1788) Additionally, John Barchers testified Frank claimed there were explosives in a "dump truck" (5-978). There was not one shred of evidence of a "dump truck" at the site, much less one exploding. Finally, the Barchers testified that Diddi was present that night, but Diadi has never been charged in this case. Not only was the Barchers testimony not inculpatory., it was totally inconsistent with the undisputed evidence in this case.
Steven Kilgore testified that security guard LeManske let Skip into the site to steal "anything that wasn't nailed down." (7-1269) First, nothing was ever stolen. Second, LeManske testified and denied ever meeting the Sheppards. (18-3464-65)
Kilgore also testified that the fire started when Skip tripped over a lantern in a shed. (7-1271, 1302). There was no shed at the site, much less a lantern. Kilgore also claimed to have seen extension cords, saws, drills, jack hammers, Motorola radios, concrete saws, acetylene torches, hammers and sledge hammers all stolen from the construction site in the "add-on laundry room" behind the Sheppard garage. (7-1277-78) Further, Kilgore claimed all these items were recovered by the police through the

46

-t,,

execution of a search warrant. All these claims were refuted by the evidence. None of these items were ever.stolen, none were ever recovered through a search warrant. In fact no search warrant was ever executed. Finally, the government's own witness, Carolee Smith, stated there is no "add-on laundry room" behind the Sheppard garage. (13-2510)
Carl Nettles testified that Skip stole a large quantity of tools from the site, including jack hammers and generators. (8:-1469) Again, nothing was ever stolen.
John White claimed Skip stole a transit from the sitethe night of the explosiOn. (8-1554-57) However, Kenneth Brown testified all transits were kept either locked in the office or in the foreman's pickup, and never left out at the site at night. (9-1759) Moreover, no transits were ever stolen. White also claims that on the night of the explosion Skip "and another person" were by the bulldozers waiting for the guards to leave the area of the trailers. (8-!556-58) When the guard didn't leave the area around the trailers, they set fire tO a pick-up truck as a diversion to draw the guards away from the trailers. (8-1558) If the Riggs testimony is to be believed at all, White's account is completely impossible. Both Riggs testified they were parked on the west side, where the bulldozers were kept. (2-446) Moreover, according to the Riggs, they were at QuikTrip when the pick-up truck caught fire. (2-466-67)
Finally, Patty Smith claimed they had been at the site a few nights before the explosion andstole tools. (8-1484) Morever, Smith claimed Skip had stolen a crate of dynamite that the police had been unsuccessful in recovering each time the Sheppard house was searched. (8-1484) Again. no tools or dynamite were ever taken, and no

search warrants ever executed.

In addition to the statements being totally inconsistent with the undisputed facts, the government's evidence placed Skip at various places the night of the explosion• According to the government's evidence: Skip was on foot at the Four Acres Motel with Frank when the explosion occurred (Kilgore, 7-1271); pulling into his mother's driveway in the family pick-up, entering the house and never leaving the rest of the night (Smith, 13-2496); pulling up in front of Larry Baker's house in a different pick-up truck at the same time (Pugh, 15-2809); having dirt and rocks rain down on him at the site (Smith, 8-1488); at the QuikTrip talking to a guard (Barchers, 5-978); running from the site when something exploded (Ownby, 7A-1418); asleep in his mother's back room (Nettles, 8-1462); and at the site when the firemen arrived (White, 8-1537).
Clearly the statements adduced by the government were inconsistent with the undisputed evidence and inconsistent with each other, rendering them totally unreliable. The government in its closing argument acknowledged the inconsistencies in its evidence, but amazingly claimed the inconsistencies rnadethem more credible: "And there might be one or two things where one witness doesn't exactly concur with another but, if anything, that shows there is no orchestration here by the government." (21-3788) Clearly the inconsistencies are far greater than "one or two" andin fact to such a large extent rendered the evidence insufficient to Sustain defendant's conviction.
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

48

49

case made the nationally televised show "Unsolved Mysteries," it was the "biggest thing

that ever happened in Marlborough". 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. "50 million" rumors floated

around Marlborough regarding the cause of the explosion and who was responsible.

During the testimony of Robert Williams the government sought to introduce a

battery allegedly sold to Williams by Frank. The defense objected on the grounds that

no battery had ever been stolen from the site. The Court initially denied the objection.

The following highlights the severe prejudice caused by the government's method of

proof in this case:

COURT: ! said I'll not sustainon that basis. I think that the evidence is in dispute, let's say, as to whether there wasanything 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 notsaying 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 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.

(!4-2682) Finally, the Court sustained the object!on 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?
In addition to insufficient evidence to establish defendant's guilt, the government presented insufficient evidence to establish the cause of the explosion. Defendant

adopts the arguments advanced by his co-appellant's on this issue.

IV, 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 Cou,,!"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, 99 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 (8th Cir. 1996)

B. Discussion

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

(i) be relevant to a rnaterial 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 vaiue.

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. 681 (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, ill 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.

During the direct examination of Patty Smith, the government elicited the

fo ow ng testimony:

Q. Finally, do you recall another conversation that happened in an automobile relating to the explosion that killed the firefighters?
A. Yes.
Q. When did that occur?
A. Sometime after that. There was -- not very long even after this, within days after that happening.
Q. Tell us what you were doing at that time when this conversation occurred.
A. We were driving.
Q. Who is we?
A. I was driving the car. Skip was next to me. Frank was directly behind me, and Joe Everhart was sitting behind Skip in the back seat.
COURT: When was this, please?
WITNESS: Just within days after this.
A. Yeah, it was raining, and we had already been drinking. We had already had some beer, and we drove by a shopping center, some kind of a, like a grocery store of some sort. And Skip turned around to the two in the back seat and said, "Oh, man, you should have seen the truck that we blew up in that parking lot." And I missed out on -
PETERS: Objection, Your Honor, relevance.

COURT: I'm not sure I understand that objection. Come up, I guess. (Counsel approached the bench and the following proceedings were had:) COURT: Is it your position that she's talking about sometime other than the explosion at issue?
BECKER: Yes, the next sentence will link it up.	"
PETERS: The next sentence will be?
BECKER: That they began talking about the explosion that occurred at the site and there is, she looked at this recent report I gave you the other day where it says your client talked about it raining dirt and rock. She said that's an error, that that was Skip Sheppard that said that.
PETERS: so the comment is that they blew a truck up in the parking lot, not related to the explosion on Novernber 29th. And he says that's relevant because?
BECKER: It brought up, then -- that's what caused the conversation to again turn to the explosion that killed the firefighters.
COURT: You're going to ask her -- I'm going to instruct the jury to disregard that-and you may say regardless of that, what was said next or some such tie into that, but they're going to be instructed to disregard the blowing up the truck in the parking lot. And have you made it clear that that was, that that's not the incident at issue?
BECKER: I think so. I can ask her, was that parking lot the construction, the highway construction site. She'll say no, someplace else.
COURT: All right. Then I'll instruct them to disregard it.
(The following proceedings were had in open court:)
Q.(By Mr. Becker:) Now, was that parking lot the same
place as the 71 Highway construction site?
A. No, it wasn't.
COURT: Ladies and gentlemen, I instruct you now to disregard the testimony regarding a truck in the parking lot at some time and some place after the incident at issue in this case.

(8-1486-89)

As the District Court noted this evidence was inadmissible under 404(b).

Defendantasserts the Court's instruction to thejury to disregard the testimony was

insufficient to cure the prejudice, and a mistrial should have been declared. Later in

the re-direct of this same witness the government elicited testimony that she was afraid

of Skip. (8-1522) This testimony was presumably to imply to the jury that Smith had

somehow been threatened by defendant for her cooperation in this case.

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In fact, the government continually presented a Series of threats to witnesses throughout its entire case, even though no witness was ever threatened. The government's intent to portray the defendants as unsavory characters, in clear violation of Rule 404(b) is probably best evidenced by the following statement in closing argument, when they were discussing the testimony of Carolee Smith:
Ask yourself, would you come forward if you lived next door to the Sheppards?
... I don't think you would want to get involved in the trial either.

(21-3934-35)

The government made this bold accusation despite the fact there was not one shred of evidence that Carolee Smith, or any government witness, was ever threatened by Skip. As the United States Court of Appeals for the Fourth Circuit aptly noted,
[T]he principal danger that Rule 404(b) targets is addressed by the language of the rule itself- that defendants not be convicted simply for possessing bad character... The archetype of this practice appears at tile conclusion of the movie Casablanca, where Police Captain Louis Renault, in attempting to demonstrate a response to the politically sensitive murder of Major Strasser, simply instructs his deputies to "round up the usual suspects."

United States v. Queen, No. 95-178 (4th Cir. December 29, 1997) (emphasis added)

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):

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1711 Westport .Road
Kansas City, MO 64! 11
(8! 6) 756-3737

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 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,

SUSAN M. HUNT

Certificate of Service

I hereby certify that two copies of the foregoing were mailed, postage pre-paid this 9th
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:

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John P. O'Connor
Twelve Wyandotte Plaza
120 W. 12th Street
Suite 1300
Kansas City, Mo. 64105
Attorney for Bryan Sheppard

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

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

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

Susan M. Hunt   

ADDENDUM

	" 1~tniteb ~tate~ ~i~tdct Cuurt
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"          WESTERN Distrtgt of MZSSOURI      "
F ~

UNITED STATES oF AMERICA         JUDGMENT IN A CRIMINAL CASE
I	"	(For Offenses Committed On or After November 1,1987
	v.
	EARL	D. SHEPPARD	Case Number:    96-O0085-02-CR'W-8
I	iName of Deferclam)	Susan M. Hunt	~
	[::3	pleaded guilty to count(s) ~~:,,L.~--
l	~	was found guilty on count(~ 1 on 02/26/97	~-'~ .,~, 	. ~.~,!	after
•	o,.=
	"	Accordingly, the defendant is adjudged guilty of such count(s), which invo~nses:
l			om~aMi]cv	Coum
	T, tle & Sec~on	Namm of Offense		ConcluaecJ	Numoenm

I18 U.S.C. 844(i}	Aiding and abetting an act of arson
	and 2	to property used in interstate com-
		merce thereby causing death to public
	•	safety officers performing official
	•	duties	11/29/88	1

	I	"5                 -

	i	The defendant is sentenced as provided in pages 2 through ~ of this judgment. The sentence ~s
-- imposed pursuant to the Sentencing Reform Act of 1984.
I ~ The defendant has been found not guilty on count(s)
•    and is dischargecl as tO such count(s).
	Count(s) ~ (is)(are) clismissed on the motion of the United States
	-	~' It is ordered that the defendant shall pay a special assessment of $ 50                                                    . dO	‑. for count.sl
	I	l 	which shall be due ~ immediately [] as follows:

	•		IT IS FURTHER ORDERED that the defendant shall notify the United States attorney for this distnct within
	l	30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special
		assessments imposed by this judgment are fully paid.
	I	Defendant'sSoc Sec No" 488-72-9468	..-	"
	i	Defendant's Date of Birth: 	04/05/60	07/02/97
	•		/~	Date of Imp‑~:Uop.M Sentence	/
	‑	Defendant's Mailing Adclress:	/ I		./ ~ /'/.,¢	/
	l	CCA-Leavenworth Detention Center
		i00 Hzghway Terrace	~/uu~,, ~. ~uvun~, or.	%.#

I		Leavenworth, Kansas 66048	Un{ted States District Judge
	Defendant's Residence Address:                                 Name & Title of Jucllc~al Officer
,

RETURN

to

DelenOant:	EARL D. SHEPPARD		Juagment--P~ge 2	O~ 5
Case Number:	96-O0085-02-CR-W-8
		IMPRISONMENT

The defendant is hereby committed to the custody el the United States Bureau of Prisons to be imprisonec atermOJ his natural life

Thecourtmakestbefollowingrecommendationstothe Bureau of Pnsons: The court strongly recommends that defendant be incarcerated at the United States Medical Center for Federal Prisoners in Springfield, Missouri, so that he may receive medical treatment.

The oelenOant ,s remanded tO ll~e ¢USlO<ly of the UnileO Stales marshal.
-- The oelenOant srta|l sur,encler to the Unmted States marshall tnr th=S ,'JLctllCt,
		8.ffL
	‑ at	p.m. on
as not,heO Dy the Unfted States marshal.
‑~ The aefen¢=ant Shall SUrrender for servme Of sentence at the mSldut=on deswgnate4 t3y me Bureau of Prisoc~s. -- Delete2 p.m. on
	‑-- as nol,fied by the United States marshal
	-- as notifie¢113y me groOat(on office.

I have executed this iudgment as tollows:

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Defendant Oehverecl on

• with a certifiecI copy of this jud§m4

Un|led States Marsl~al

OeDuly Marshal

•	¢-~- .tJ-''- *,.

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Defendant: EARL D. SHEPPARD		Judgment--Page ,
Case Number: 96-O0085-02-CR-W-8
	SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of f i v~ years.

While onsupervised release, the defendant shall no,: commit another federal, state, or I os, ai crime and shall not illegally possess a controlled substance. The defendant shall comply with the staridard conditions that have been adopted by this court (set forth below). If this judgment imposes a restitution obligation, it shall be a conditson of supervised release that the defendant pay any such restitution that remains unpaid at the commencement ot me term of supervised release. The defendant shall comply with the following additional conditions:

I~	The defendant shall report in person to the probation office in the district to which the defendant is released 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.

[3 The defendant shall not possess a firearm or destructive device.

i	SEE ATTACHMENT 3A

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Defendant :
Case Number :
EARL D. SHEPPARD
96-00085-02-CR-W-8
Judgment--Page 3A of 5

ATTACHMENT 3A

Special 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.

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Defendant:
Case Number:

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EARL D. SHEPPARD	Judgment--Page
96-00085-02-cR-w-8
RESTITUTION AND FORFEITURE
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RESTITUTION

The defendant sha!l make restitution to the following persons m the following amounts:

	Name of Payee	~,meqnt of Restitution

Kansas City, Missouri Fire Department
414 East 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).
the payee(~.

Restitution shall be paid:

Z =n full tmmediately.
.~ an full not later than
Z 0n equal monthly installments over a period of	months. The first payment is due on the date of
tins luogment. Subsequent payments are due monthly thereafler.

Z minstallmentsaccordingtothefollowing scheduleofpayments:
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 10ayment shall be divided proportionately among the payees named unless otherwise specified here.

-                      FORFEITURE
The defendant is ordered to forfeit the following property to the Umted States:

! I I I I I I i I I I i .. I
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		)
Defendant:	EARL D. SHEPPARD
Case Numloer:	96-O0085-02-CR-W-8
Judgment--Page
,5	‑of ‑..!5 ‑

STATEMENT OF REASONS

.'I'1 The court adopts the factual findings and guideline application =n the Dresentence repo,t.

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

Guideline Range Determined by the Court:

	Total Offense Level:	43
	Criminal History Category:	I V
	Imprisonment Range:	to LIFE r~
	Supervised Release Range: ‑‑3 to 5 years
	Fine Range: $25 tO00	to $ 2501000

[~ Fine is waived or is below the guideline range, because of the defendant's inability to pay. Restitution: $ 536 ~O00
[] 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 depart from the sentence called for by apphcat|on of the gutdehnes.

OR
,.~.-- The sentence is within the guideline range, that range exceeds 24 months, and the sentence is imDosed for the foltowing reason(s):

OR
The sentence departs from the guideline range

"upon motion of the government, as a result of defendant's substantial assistance.

'-- for the foliowing,Jreason(s):
I...J ,"

ou $ GI~ t~O.'t22,040 'C,386