U.S. v. Manfre

• Decision Date: 11 May 2004
• Docket Number: No. 03-2394WA.,No. 03-2239WA.,03-2239WA.,03-2394WA.
• Citation: 368 F.3d 832
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Kevin MANFRE, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

368 F.3d 832

UNITED STATES of America, Appellee/Cross-Appellant, v. Kevin MANFRE, Appellant/Cross-Appellee.

No. 03-2239WA.

No. 03-2394WA.

United States Court of Appeals, Eighth Circuit.

Submitted: January 13, 2004.

Filed: May 11, 2004.

Rehearing and Rehearing En Banc Denied June 21, 2004.

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Jeffrey M. Rosenzweig, argued, Little Rock, AR, for appellant.

Steven N. Snyder, argued, Asst. U.S. Attorney, Fort Smith, AR, for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

Kevin Manfre was convicted for his role in the blowing up of a nightclub in Fort Smith, Arkansas. On appeal, he challenges the conviction on evidentiary grounds and also appeals the sentence imposed. The government cross-appeals also arguing that the District Court failed to impose the proper sentence. We affirm the conviction, disagree with Mr. Manfre's sentencing arguments, and accept the government's argument in part. Accordingly, the judgment is vacated, and the cause remanded for resentencing in accordance with this opinion.

I.

We state the facts in the light most favorable to the jury verdict. Mr. Manfre owned and operated the Ozark Sports Club in Fort Smith, Arkansas. In late 1996 or early 1997, Mr. Manfre began planning to build an upscale nightclub next to the sports club with his partner, John Moore. In mid 1997, he secured a one-million-dollar construction loan. Mr. Manfre signed a personal guaranty for the loan and also pledged the sports club as collateral. Construction of the nightclub finished in May of 1998, and it opened for business thereafter.

At some point in 1998, Mr. Manfre hired twenty-one-year-old David Rush to work at the nightclub as a part-time bouncer. Mr. Manfre and Mr. Rush became fast friends, with Mr. Rush looking up to Mr. Manfre as a mentor, and Mr. Manfre considering Mr. Rush a "Little Bro." As will become evident, Mr. Rush is a central player in our evaluation of this appeal.

The nightclub did not fare well. It suffered net losses in the tens of thousands of dollars in 1998, 1999, and 2000. Mr. Manfre became delinquent on his loan payments, fell behind on his property and unemployment taxes, and risked losing both the nightclub and the sports club. On December 29, 2000, Mr. Manfre's loan carrier sent him a notice that final payment on his loan, some $886,580, was due on January 10, 2001. Although he was granted an extension by the bank, Mr. Manfre's financial situation did not improve.

At least as early as January 2001, Mr. Manfre entered into a scheme with Mr. Rush to rid himself of the nightclub and the financial burden it caused. He and Mr. Rush decided that they would burn down the nightclub. On January 8, 2001, Mr. Manfre sent Mr. Rush, who had then moved to Westminster, Colorado, a Federal Express package. At trial, it was suggested that the package contained the blueprints of the nightclub, as a copy of the prints was found in Mr. Rush's apartment in Colorado after the explosion. The blueprints contained handwritten notes, shown to be in Mr. Manfre's handwriting, instructing Mr. Rush as to certain tactical concerns that he should have in mind in burning down the nightclub. The two agreed that: Mr. Rush would return from Colorado and burn down the night club; he would use gasoline as the accelerant in the fire, and that they would divide the insurance proceeds.

As the planning progressed, Mr. Manfre and Mr. Rush were in frequent contact. Mr. Manfre called Mr. Rush on his cell phone, and Mr. Rush tried to keep his friends from knowing the content of those conversations. On different occasions, however, he admitted to his seventeen-year-old pregnant fiancée, Jessica Van Gaalen, and to his friend, Trevor Mills, that Mr. Manfre had hired him to burn down the nightclub. As the date approached, Mr. Rush became more and more wary of the plan but felt he was obligated to complete the scheme, because he needed the money for his yet unborn child.

On April 23, Mr. Rush returned to Fort Smith. He went to a hardware store and purchased a 30-inch wrecking bar, flashlight, sledge hammer, and duct tape. At approximately two o'clock the next morning, the nightclub exploded, causing a total loss to the building. Mr. Rush died in the explosion. Hours before the blast, Mr. Manfre's truck was seen outside the nightclub with large gasoline tanks in the bed of the truck. A propane tank with its valve open was found inside the charred remains of the nightclub. When Mr. Manfre was questioned about the explosion, he lied, telling investigators that his loan and tax payments for the nightclub were up to date. He also told investigators that he had no idea how Mr. Rush acquired the blueprints to the club. On July 12, 2001 Mr. Manfre signed an insurance claim, swearing he had nothing to do with the explosion.

A year later, Mr. Manfre was indicted by a grand jury on one count of solicitation to commit a crime of violence in violation of 18 U.S.C. § 373, one count of conspiracy to commit arson in violation of 18 U.S.C. § 371, one count of arson involving interstate commerce in violation of 18 U.S.C. § 844(i), one count of causing someone to travel in interstate commerce to commit arson in violation of 18 U.S.C. § 1952(a)(3), and one count of fraud in violation of 18 U.S.C. § 1341. The case proceeded to trial, and Mr. Manfre was found guilty on all charges. He was sentenced to 14 years in prison. This appeal followed.

II.

Challenging his conviction, Mr. Manfre argues that parts of the testimony of four prosecution witnesses, Gregory Scott Buttler, Scott Strozier, Jessica Van Gaalen, and Trevor Mills, were improperly admitted. We review the challenges in turn.

A.

Gregory Scott Buttler was Mr. Rush's half-brother, and Mr. Rush resided with Mr. Buttler in Colorado. At trial, Mr. Buttler testified that Mr. Manfre would call Mr. Rush, and that Mr. Rush would take the phone into his bedroom for privacy. Mr. Buttler would know it was Mr. Manfre on the phone because he would answer it first, or would recognize the number on the telephone's caller-identification system. Over a hearsay objection, Mr. Buttler testified that when he asked his brother what Mr. Manfre wanted, Mr. Rush would not say specifically, explaining that "Kevin" wished to keep their plans secret. Mr. Buttler also testified that he heard his brother discussing a propane tank with Mr. Manfre. When asked about the propane tank, Mr. Rush told Mr. Buttler that he and Mr. Manfre were thinking of ways to promote Mr. Manfre's business, such as an outdoor barbeque. After the completion of Mr. Buttler's testimony, the District Court instructed the jury that it could consider the statements made by Mr. Rush, even though they were made without Mr. Manfre's knowledge and in his absence.

On appeal, Mr. Manfre makes two arguments regarding Mr. Buttler's testimony. First, he argues that the admission of Mr. Buttler's testimony violated the Confrontation Clause of the Sixth Amendment. Second, he argues that the statements of Mr. Rush, as retold by Mr. Buttler, should not have been admitted, as they were not in furtherance of any conspiracy, and thus were hearsay. In reviewing the testimony, we treat separately Mr. Rush's explanation that he could not disclose what he discussed with Mr. Manfre, and Mr. Rush's statements regarding the propane tank.

We review the evidentiary rulings of a district court for abuse of discretion, "keeping in mind that its discretion is particularly broad in a conspiracy trial." United States v. Dierling, 131 F.3d 722, 730 (8th Cir.1997). Fed.R.Evid. 801(d)(2)(E) provides that an out-of-court statement is not hearsay if it is offered against a party and is "a statement by a coconspirator of a party [made] during the course of and in furtherance of the conspiracy." The statement need not be made by one conspirator to another conspirator. United States v. Frazier, 280 F.3d 835, 848 (8th Cir.2002). Instead, "[t]he relevant questions are (1) whether the declarant, and the defendant against whom the statements are offered, are members of the conspiracy, and (2) whether the declarant made the statements in the course of and in furtherance of the conspiracy." Ibid. Further, our Circuit has held that in order to satisfy the requirements of the Sixth Amendment's Confrontation Clause for the admission of a coconspirator's out-of-court statement, the offering party must demonstrate that the declarant is unavailable, and that the declarant's statement is reliable enough. United States v. DeLuna, 763 F.2d 897, 909-10 (8th Cir.1985).

We believe Mr. Buttler's testimony regarding his brother's statements, explaining why he could not divulge the contents of his conversation with Mr. Manfre, has enough reliability to satisfy the Confrontation Clause. In essence, Mr. Buttler testified that Mr. Rush refused to divulge what he and Mr. Manfre were discussing despite Mr. Buttler's suspicion. The statements concealing the contents of the conversation, which in light of subsequent events raised an inference of guilt, divulged no incriminating information at the time they were made. But, given the brother's suspicion and Mr. Rush's later attempts at concealment, we find that the likelihood that the statements were made and were truthful was sufficiently high to satisfy the Confrontation Clause. See id. at 910-11.¹ Further, we agree with the District Court that at the time Mr. Rush made the statements to Mr. Buttler a conspiracy existed, and that at the time of trial, Mr. Rush was unavailable due to his death. Thus, the question remaining is whether the statements were made in furtherance of the conspiracy.

In explaining the "in furtherance of the conspiracy" component of the rule, we have held that "[a] statement that simply informs a listener of the declarant's criminal activities is not made in furtherance of the conspiracy; instead, the...