U.S. v. Farish

• Decision Date: 28 July 2008
• Docket Number: No. 07-2402.,07-2402.
• Citation: 535 F.3d 815
• Parties: UNITED STATES of America, Appellee, v. Stephen Michael FARISH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

535 F.3d 815

UNITED STATES of America, Appellee, v. Stephen Michael FARISH, Appellant.

No. 07-2402.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2008.

Filed: July 28, 2008.

Daniel L. Gerdts, argued, Minneapolis, MN, for appellant.

Erica MacDonald, AUSA, argued, Minneapolis, MN, for appellee.

Before MELLOY, GRUENDER and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

After a jury trial, Stephen Michael Farish was convicted of one count of arson, in violation of 18 U.S.C. §§ 844(i), (n) and 2, and six counts of making false statements, in violation of 18 U.S.C. § 1001. The district court sentenced Farish to 108 months' imprisonment and ordered him to pay $73,873.36 in restitution. Farish now appeals both his conviction and sentence. We affirm the conviction but vacate a portion of the restitution award and remand for imposition of a corrected sentence.

I. BACKGROUND

In November 2002, Monica Leinen, Farish's girlfriend, damaged his vehicle by scratching it with a key following a verbal argument. According to Leinen's testimony, however, Farish believed Susan Metzger had damaged his vehicle. Metzger was a friend of Leinen who had allowed Leinen to stay with her after an incident of domestic abuse between Farish and Leinen.

In his anger at Metzger, Farish hired Che Romero to start a fire at the home Metzger rented at 117 Diamond Lake Road West in Minneapolis, Minnesota. Romero mistakenly targeted the wrong home and on November 21, 2002, set fire to two vehicles owned by Kirby and Shannon Bauer that were parked in front of their home at 5401 Wentworth Avenue South in Minneapolis. On December 5, 2002, Romero, accompanied by his cousin Miguel Monette, returned to 5401 Wentworth Avenue South and threw two Molotov cocktails at the residence, again mistakenly targeting the Bauers' home. On December 18, 2002, Romero started a fire at Metzger's home at 117 Diamond Lake Road West, placing an incendiary device in the doorway of the residence. After the fire at the Diamond Lake Road West home, Farish arranged for Romero to steal a Dodge Caravan from Denny Hecker Rosedale Dodge ("Rosedale Dodge"), the dealership where Farish worked, by leaving the keys in the van. The Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") investigated the fires, and during the investigation Farish made at least six false statements to ATF agents denying that he knew an individual named Che or Che Romero.

A grand jury indicted Farish on one count of arson, charging that he, along with Romero, "did maliciously destroy, attempt to maliciously damage and destroy, and conspire to maliciously damage and destroy, by means of fire, the building located at 117 Diamond Lake Road West"; one count of possession of an unregistered firearm; one count of illegal manufacture of a firearm; one count of possession of a firearm with no serial number; and six counts of making false statements to ATF agents.

At Farish's trial, the Government presented testimony that Farish had committed two acts of domestic abuse against Leinen during the course of their relationship. Farish objected, arguing that the evidence was inadmissible and constituted improper character evidence in violation of Federal Rule of Evidence 404(b). The Government argued that the evidence was relevant to demonstrate Farish's motive and was not unfairly prejudicial. The Government theorized that Farish had committed the arson in response to the keying of his car, which he attributed to Metzger because of the "bad blood" that resulted from the domestic abuse incidents perpetrated by Farish against Metzger's friend, Leinen. The Government also argued that the domestic abuse explained why Leinen was afraid of Farish and failed to come forward immediately to report his crimes. The district court admitted the evidence as it related to Farish's motive, intent and plan in carrying out the arson and gave a limiting instruction to the jury after Leinen testified. When the district court offered to repeat the limiting instruction to the jury at the end of the trial, Farish's counsel stated that he was "satisfied with what [the district court] said during the trial."

The jury returned a guilty verdict against Farish on the arson count and the six counts of making false statements but returned a not guilty verdict on the remaining counts. At sentencing, the district court explicitly stated that it would "base its sentence on what it saw and it heard at trial." The district court applied a base offense level of 24, finding that under the United States Sentencing Guidelines § 2K1.4(a)(1), Farish knowingly created a substantial risk of death or serious bodily injury. The district court then added a two-level enhancement for Farish's role in the offense under § 3B1.1(c) and a two-level enhancement for obstruction of justice under § 3C1.1, for a total offense level of 28. With a criminal history category of II, Farish's advisory sentencing guidelines range was 87 to 108 months' imprisonment. The court sentenced Farish to 108 months' imprisonment on count one, 60 months' imprisonment for each of the six counts of making false statements, to be served concurrently, and three years' supervised release. The court also ordered Farish to pay $73,873.36 in restitution to Shannon and Kirby Bauer; Robert Barrett Campbell, owner of the Diamond Lake Road West home; State Farm Home Insurance and State Farm Insurance Auto Claims (collectively "State Farm"); and Rosedale Dodge.

Farish appeals his conviction and sentence. He argues that the district court erred by allowing the Government to present the domestic violence evidence; by giving improper jury instructions that constructively amended the indictment; by determining a sentencing guidelines base offense level of 24; and by ordering restitution for the Bauers, State Farm and Rosedale Dodge.

II. DISCUSSION

A. Domestic Violence Evidence

Farish first argues that the district court erred in admitting evidence of his acts of domestic abuse against Leinen pursuant to Federal Rule of Evidence 404(b). Rule 404(b) prohibits the introduction of "[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith," although such evidence may be admissible "for other purposes, such as proof of motive ... intent ... [or] plan...." Fed.R.Evid. 404(b). To admit evidence under Rule 404(b), the evidence "must (1) be relevant to a material issue raised at trial, (2) be similar in kind and close in time to the crime charged, (3) be supported by sufficient evidence to support a finding by a jury that the defendant committed the other act, and (4) not have a prejudicial value that substantially outweighs its probative value." United States v. Johnson, 439 F.3d 947, 952 (8th Cir. 2006) (quotation omitted). Rule 404(b) permits other-acts evidence to be offered to demonstrate motive, as it is "separate and distinct from the impermissible purpose of showing propensity." See United States v. Gipson, 446 F.3d 828, 831 (8th Cir.2006) (allowing other-acts evidence to demonstrate the defendant's knowledge, intent and plan); see also United States v. Drapeau, 414 F.3d 869, 875 (8th Cir.2005).

We review a district court's decision to admit evidence under Rule 404(b) for abuse of discretion and "reverse only when the evidence clearly had no bearing on the case and was introduced solely to show defendant's propensity to engage in criminal misconduct." United States v. Walker, 428 F.3d 1165, 1169 (8th Cir.2005).

The Government argues that the evidence of Farish's domestic abuse was relevant because it explained the prior relationship between Farish, Metzger and Leinen, from which the Government argues Farish's motive to commit the arson against Metzger derived. After Farish abused Leinen, she stayed with Metzger, who did not allow Farish to see Leinen. According to the Government, that incident created "bad blood" between Farish and Metzger and explained why Farish assumed Metzger had keyed his car. The Government argues that this was his motive for burning Metzger's home. Farish argues that the domestic violence evidence is extremely prejudicial and that it was irrelevant because Farish's belief that Metzger keyed his car alone explained Farish's motive.

For evidence to be inadmissible under 404(b), its probative value must be substantially outweighed by its unfair prejudice. Johnson, 439 F.3d at 952. While the admission of prior acts of domestic abuse can create unfair prejudice, we do not find that any unfair prejudice resulting from the domestic abuse evidence here substantially outweighed its probative value. We cannot conclude that this evidence "clearly had no bearing on the case and was introduced solely to show [Farish's] propensity to engage in criminal conduct." See Walker, 428 F.3d at 1169-70 (finding that evidence of prior conviction was admissible because it was "part of the history of [the parties'] relationship," it was relevant to motive and its probative value outweighed its potential prejudicial effect). Without the domestic abuse evidence, the jury would be left to speculate as to why Farish might conclude that Metzger keyed his car. Because the evidence was necessary to explain Farish's motive, we conclude that the probative value of the evidence was not substantially outweighed by any unfair prejudice.¹

Furthermore, the district court instructed the jury that it could only use the evidence of the domestic assault in considering "motive or preparation or lack of mistake or opportunity to have done the offense." After the district court gave the limiting instruction, Farish's counsel said he was satisfied with it, and, at the end of the trial, counsel again repeated that he was "satisfied with what [the district court] said during the trial." Thus, the jury was instructed on the use of the 404(b) evidence, and "[t]he limiting instruction cured whatever unfair...