U.S. v. Sandstrom

• Citation: 594 F.3d 634
• Decision Date: 29 January 2010
• Docket Number: No. 08-3164.,No. 08-3161.,08-3161.,08-3164.
• Parties: UNITED STATES of America, Appellee, v. Steven SANDSTROM, Appellant. United States of America, Appellee, v. Gary Eye, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

594 F.3d 634

UNITED STATES of America, Appellee, v. Steven SANDSTROM, Appellant.

United States of America, Appellee, v. Gary Eye, Appellant.

No. 08-3161.

No. 08-3164.

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2009.

Filed: January 29, 2010.

Cheryl A. Pilate, Morgan Pilate LLC, Olathe, KS, argued (Rebecca L. Kurz, on the brief), for appellant Steven Sandstrom.

John R. Osgood, Lee's Summit, MO, argued, for appellant Gary Eye.

Angela M. Miller, U.S. Dept. of Justice, Civil Rights Div., Appellate Section, Washington, DC, argued (Loretta King, Acting Asst. Atty. Gen., Jessica Dunsay Silver, Civil Rights Div., Appellate Section, on the brief), for appellee.

Before BYE, SMITH, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

A jury found Steven Sandstrom and Gary Eye (collectively, "defendants") guilty for their roles in the shooting death of William McCay, an African-American male. Sandstrom and Eye targeted McCay because of his race while he walked on a public street. Defendants were charged with (1) interfering with federally-protected activities, in violation of 18 U.S.C. § 245(b)(2)(B) and 18 U.S.C. § 2 ("Count 1"); (2) using a firearm during and in relation to a crime of violence as set forth in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and 18 U.S.C. § 2 ("Count 2"); (3) interfering with federally-protected activities with death resulting, in violation of 18 U.S.C. § 245(b)(2)(B) and 18 U.S.C. § 2 ("Count 3"); (4) using a firearm during and in relation to a crime of violence causing murder as set forth in Count 3, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), (j)(1), and 18 U.S.C. § 2 ("Count 4"); (5) tampering with a witness, in violation of 18 U.S.C. § 1512(a)(1)(C), (a)(3)(A), and 18 U.S.C. § 2 ("Count 5"); (6) using a firearm during and in relation to a crime of violence causing murder as set forth in Count 5, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), (j)(1), and 18 U.S.C. § 2 ("Count 6"); (7) destroying records in a federal investigation, in violation of 18 U.S.C. § 1519 and 18 U.S.C. § 2 ("Count 7"); and using a firearm to commit a felony as set forth in Count 7, in violation of 18 U.S.C. § 844(h)(1) and 18 U.S.C. § 2 ("Count 8"). Additionally, Sandstrom was charged with retaliating against a witness, in violation of 18 U.S.C. § 1513(b)(2) ("Count 9").

The jury found Eye guilty on Counts 1-8 and Sandstrom guilty on Counts 3-9. The jury acquitted Sandstrom on Counts 1 and 2. Thereafter, the district court¹ sentenced both defendants to life imprisonment.

Sandstrom and Eye appeal, arguing that the district court (1) abused its discretion in denying their motions to sever because their defenses were mutually antagonistic and irreconcilable, resulting in an unfair trial; (2) erred in failing to dismiss multiplicitous counts in the indictment; (3) erred in denying their motions to dismiss Counts 1, 3, and 5 on the grounds that 18 U.S.C. § 245 is an unconstitutional exercise of Congress's Commerce Clause power; and (4) abused its discretion in denying their motions for a mistrial based on the prosecutor's alleged comments about their failure to testify. Additionally, Eye argues that (1) the evidence is insufficient to support his convictions on Counts 1 and 2 and (2) the district court erred in failing to grant his request for a mistrial and severance, in violation of his Sixth Amendment right to confrontation.

For the reasons set forth below, we affirm.

I. Background

On the evening of March 8, 2005, Sandstrom, Eye, and Regennia Rios drove around Kansas City, Missouri, in a stolen Dodge Intrepid looking for another car to steal. Sandstrom, who was driving the Intrepid, pulled in behind a Jeep that was parked in a driveway. Sandstrom and Eye exited the Intrepid and stole the Jeep. Thereafter, Sandstrom drove the Intrepid, while Eye drove the Jeep with Rios as his passenger.² The parties briefly separated, but they subsequently decided to meet at the home of Jonnie Renee Chrisp, Rios's cousin.

After Sandstrom arrived at Chrisp's house, he informed Eye and Rios that "he just shot a n* * * *r at 7-Eleven." Sandstrom appeared "frantic" and "intense." Sandstrom, Eye, and Rios then went to Sandstrom's house, where Sandstrom told his mother that he had "just shot a n* * * *r." They then went to Sandstrom's room and smoked methamphetamine. Eye subsequently received a phone call from Vincent Deleon, and the three left Sandstrom's house in the Intrepid to go pick up Deleon at Chrisp's house. Sandstrom brought a gun with him.

After picking up Deleon at Chrisp's house, Sandstrom, Eye, Rios and Deleon— all high on methamphetamine—left in the Intrepid to steal a third car. During the drive, Sandstrom asked Deleon "if he heard about the shooting at the 7-Eleven" and told Deleon about how he had "just shot at some n* * * *r." Eye replied to Sandstrom that "if you get to do one, I get to do one." Sandstrom responded that "it wasn't like that, dawg," to which Eye replied, "[Y]ou started it. Let's finish it."

At some point during the drive, Sandstrom removed a .22 caliber revolver from a brace-like holster on his back. Sandstrom told Deleon that he could "kill a n* * * *r quick." Deleon responded that he would not kill anybody but that he would "probably shoot them in the legs." Eye also said that he "would kill a n* * * *r quick." During the drive, Sandstrom and Eye casually passed the gun back and forth between them.

The four drove into a neighborhood where Sandstrom and Eye stole the third vehicle of the night—another Jeep. Deleon drove away in the latest Jeep, while Sandstrom, Eye, and Rios returned to Sandstrom's house in the Intrepid. They arrived at Sandstrom's house between midnight and 1:00 a.m. Around 5:00 a.m. on March 9, 2005, Eye received a phone call from Deleon saying that he needed Eye to pick up Chrisp from a gas station. The three left Sandstrom's house to go pick up Chrisp and, during the drive, Eye told Sandstrom that when he saw an African American "it's on site," meaning that when Eye saw a black person, he would attack him.

When the three arrived at the gas station, Chrisp got in the car and asked to be taken to her home. Eye said that was a good idea because, if she stayed with them, "she would probably see something she didn't want to see." Sandstrom then asked Chrisp whether she had seen anything on the news about the shooting in front of the 7-Eleven and told her that he had "shot at some n* * * *r." He also told Chrisp that she was "about to witness a homicide." Chrisp again asked to be taken to her home.

After dropping off Chrisp, Sandstrom, Eye, and Rios drove down 8th Street to "avoid police presence." When they got to Kensington Street, Rios saw William McCay, an African-American man. McCay was walking on the left side of 9th Street. Sandstrom planned to make a right turn, but Eye told him to "hit the alley" and give him the gun. Sandstrom gave Eye the gun and turned down the alley connecting 8th and 9th Streets.

Sandstrom drove to the end of the alley, and Eye put his arm out the window and fired at least two shots at McCay from roughly three to four feet away. Rios looked directly at McCay's face before ducking behind the seat. A man standing outside of a restaurant heard the shots around 6:00 a.m. The restaurant was located approximately 80 feet from the intersection of 9th Street and Spruce Avenue. The man did not call the police because he did not think it uncommon to hear gunshots in that neighborhood.

After shooting at McCay, Eye told Sandstrom to drive around the block, and Sandstrom went left on Spruce Avenue and came back out on Kensington Avenue. When they got back to 9th Street, Eye did not see McCay. Eye "started freaking out" and became "frantic." Eye was "tripping" and could not understand how McCay was no longer there; he wanted to go find McCay. Sandstrom told Eye that he was "tripping and doing too much." Sandstrom then looked at Rios, and Rios told Sandstrom to go back and find McCay because McCay "was a case that we would probably catch." Rios meant that McCay was a witness that could implicate them in the shooting. Sandstrom then went down 9th Street until Eye told him to turn on Van Brunt Boulevard. Sandstrom turned on Van Brunt Boulevard, on 8th Street and then on Brighton Avenue. He followed all of Eye's directions. Once on Brighton Avenue, Eye instructed Sandstrom to pull the car over, and Sandstrom complied. Rios saw McCay again at 9th Street and Brighton Avenue. Eye got out of the car and walked toward McCay with the gun in the pocket of his sweatshirt. Eye met McCay in the middle of 9th Street and began to struggle with him. Eye pulled the gun and fired at McCay. McCay stumbled to the other side of the street and collapsed. Rios reported hearing one or two shots fired. McCay died from a single, .22 caliber gunshot wound to the chest. A 911 call at 6:12 a.m. reported hearing shots fired at the location.

After hearing Eye fire the shots, Rios told Sandstrom to go get Eye. Sandstrom then pulled up to Eye and opened the door. Eye got in the vehicle. At that point, McCay stumbled in front of the car to the other side of the street. McCay went to the other side of 9th Street. Rios did not know what happened to McCay when he got to the other side of 9th Street because the trio "sped off." They went to Sandstrom's house, where Eye and Rios retrieved one of the stolen Jeeps; Sandstrom remained in the Intrepid. Sandstrom then led Eye and Rios to a location under the Manchester Street Bridge, where Sandstrom and Eye set the Intrepid on fire. Sandstrom, Eye, and Rios subsequently left the scene in the Jeep and drove to a friend's house to pick up Deleon.

When they arrived at their friend's house, they heard a news report that three black males were suspected in the homicide at 9th Street and Brighton Avenue. Sandstrom and Eye laughed. Sandstrom declared "that's my car" when the news reported on the...