____________

No. 95-2257
____________

United States of America,         *
                                  *
                Appellee,         *
                                  *

     v.                           *
                                  *
Douglas Allen Baker,              *
                                  *
                Appellant.        *

____________
                                      Appeals from the United States
No. 95-2466                           District Court for the
____________                          District of Minnesota

United States of America,         *
                                  *
                Appellee,         *
                                  *
     v.                           *
                                  *
Leroy Charles Wheeler,            *
                                  *
                Appellant.        *

                             ____________

                  Submitted:    February 14, 1996

                         Filed: September 27, 1996
                             ____________

Before McMILLIAN, LAY and HANSEN, Circuit Judges.
                           ____________


McMILLIAN, Circuit Judge.
     Douglas Allen Baker and Leroy Charles Wheeler appeal from
final judgments entered in the District Court1 for the District of
Minnesota, upon a jury verdict, finding each guilty of aiding and




    1
     The Honorable Robert G. Renner, Senior United States District
Judge for the District of Minnesota.

                               -2-
abetting the other in knowingly possessing a toxin for use as a
weapon in violation of 18 U.S.C. §§ 175, 2.      The district court
sentenced Baker and Wheeler each to 33 months imprisonment, 3 years
supervised release and a special assessment of $50.     For reversal,
Baker argues the district court erred in denying his motion to
sever and in admitting into evidence certain hearsay statements.
For reversal, Wheeler argues the district court erred in admitting
into evidence co-conspirator’s statements.     Both defendants also
argue 18 U.S.C. § 175 is unconstitutional, the district court erred
in admitting into evidence certain documents, the evidence was
insufficient to support the jury verdict, and the district court
erred in denying their motion for jury selection from a particular
division.   For the reasons discussed below, we affirm Wheeler’s
conviction and sentence, but we reverse Baker’s conviction and
remand his case to the district court for further proceedings.


BACKGROUND FACTS


     On May 21, 1992, Colette Baker, the wife of defendant Baker,
went to the Pope County, Minnesota, sheriff’s office.    She appeared
to be very nervous.   She talked to the receptionist, Joan Holtberg.
Colette Baker was carrying a small red coffee can.        Inside the
coffee can were a baby food jar containing a white powder, a
fingernail polish bottle containing a greenish gel, a pair of
rubber gloves, and a handwritten note.2   Colette Baker took each of

       2
        The text of the note was as follows (minor misspelling
corrected):

     DOUG, Be extremely careful! After you mix the powder
     with the gel, the slightest contact will kill you! If
     you breathe the powder or get it in your eyes, you’re a
     dead man. Dispose all instruments used. Always wear
     rubber gloves and then destroy them also.
          Good hunting!!
     P.S. Destroy this note!!

                                 -3-
the items out of the coffee can and showed them to Holtberg.
Colette Baker referred to the contents of the coffee can as




                               -4-
“Maynard” and told Holtberg that she believed that the powder and
gel were only dangerous if they were mixed together.


     The sheriff’s office turned over the coffee can and its
contents to the FBI for analysis.        The FBI found two of Wheeler’s
fingerprints inside one of the rubber gloves and one of his
fingerprints on the bottom of the coffee can.         The United States
Army Medical Research Institute of Infectious Diseases identified
the white powder as ricin.        Ricin is a toxin derived from the
castor bean plant and is extremely deadly.           There is no known
antidote for ricin poisoning.        FBI special agent Thomas Lynch
testified that the process for producing ricin from castor beans is
relatively simple and is described in various publications which
are commercially available.      The baby food jar contained about .7
gram of 5% pure ricin, which, according to a government witness,
was enough to kill 126 people.      The greenish gel was a mixture of
dimethyl sulfoxide (DMSO), a solvent which can penetrate the skin,
and aloe vera gel, which is used in cosmetics and hair care
products.    According to Lynch, DMSO could be combined with ricin to
carry the ricin through the skin; however, Lynch did not believe
that DMSO would be an effective carrier unless the skin was broken
and the ricin could enter the body through cuts or scratches.


     Scott Loverink testified that he had known Wheeler since the
late 1970s but had never met Baker.           Loverink testified about
conversations he had had with Richard Oelrich and Dennis Bret
Henderson in the early 1990s about ordering castor beans through
the mail, processing the castor beans into ricin, and using the
ricin to kill people.       According to Loverink, in the summer of
1991, Henderson told him that he (Henderson) had ordered some
castor beans and had planted them in Wheeler’s yard.             Henderson
also introduced Loverink to Oelrich.           According to Loverink,
Oelrich     referred   to   “bureaucratic   flu,”   identified     various

                                   -5-
government   employees   as   potential   targets,   and   described   the
advantages of ricin over other poisons and how ricin could be used




                                  -6-
with DMSO to carry the ricin through the skin.         Henderson also
discussed how ricin could be used with DMSO and left in places
where people would touch it.


        According to Loverink, Oelrich and Henderson referred to ricin
as “Maynard.”     Loverink did not initially know why they did so.
However, Loverink later received copies of a newsletter called the
CBA Bulletin and noticed that the newsletter contained advertise-
ments for castor beans and instructions for making ricin which
could    be purchased from Maynard Campbell in Ashland, Oregon.
Henderson told Loverink that was why they called ricin “Maynard.”


        Loverink testified that sometime during the summer of 1991,
possibly in August, Henderson left a baby food jar containing ricin
in his (Loverink’s) workshop for about two weeks.           Henderson
explained to Loverink that he did not want to store it because
there were small children around his house.


        In July 1994 a federal grand jury charged Baker and Wheeler
with one count of aiding and abetting one another in knowingly
possessing a toxin, ricin, for use as a weapon, in violation of
18 U.S.C. §§ 175, 2.     Following their arrests, FBI special agent
Daniel Lund interviewed them.      According to Lund, Baker admitted
possessing a powder he called “Maynard” two to three years before,
but explained that he intended to use it as an insecticide by
sprinkling it on cabbage plants in his garden (he did not do so).
Baker denied receiving the powder from Henderson.     Baker said that
the powder was in a coffee can and that there were rubber gloves in
the coffee can; he could not remember any specific instructions for
its use except not to touch or inhale it or who had referred to the
powder as “Maynard.”




                                  -7-
     Lund also interviewed Wheeler.   The interview was reduced to
writing and Wheeler signed the written statement.     The written
statement was introduced into evidence at the trial (as Government




                               -8-
Exhibit 12).     Wheeler said that he was aware of a toxin called
“Maynard” made from castor beans and that he had heard Oelrich,
Henderson and Duane Baker, defendant Baker’s father, discuss it.
Wheeler had heard Oelrich and Henderson discuss mixing “Maynard”
with DMSO and aloe vera and he also knew that DMSO is quickly
absorbed into the skin.    Wheeler knew about the advertisements for
castor beans in the CBA Bulletin and that Oelrich had received the
CBA Bulletin.     Wheeler also knew that in April 1991 Oelrich had
ordered castor beans from Maynard Campbell and that the castor
beans had been sent to his (Wheeler’s) house.          Wheeler gave the
castor   beans   to   Henderson.    According   to   Wheeler,   Henderson
processed the castor beans into ricin in his (Wheeler’s) shed.
Henderson wore rubber gloves and a face mask during the process.
Wheeler described the ricin as a white powdery substance.        Wheeler
knew that it was a deadly poison and he had heard Oelrich and
Henderson discuss using “Maynard” to kill people.          Wheeler said
that Henderson put the powder in a baby food jar, which he
(Henderson) then put inside a coffee can and stored in Wheeler’s
shed for several months.


     Pre-trial motions, including motions to sever, to dismiss the
indictment and for trial in, or for a jury drawn from, the division
where the offense charged occurred, were denied.            The offense
charged occurred in Pope County, Minnesota, which is in Division 6
of the District of Minnesota.      Then-Chief Judge Diana E. Murphy, in
Division 4, had originally been assigned to preside over the trial.
However, upon Judge Murphy’s appointment to this court, the case
was reassigned to Judge Renner, in Division 3.        Jurors for trials
in Division 3 are also drawn from Division 1.            The jury found
defendants guilty.     The district court sentenced each defendant to




                                    -9-
33 months imprisonment, 3 years supervised release and a special
assessment of $50.      These appeals followed.3


BAKER-- SEVERANCE


       Baker argues that his case should not have been joined with
Wheeler’s and that the district court abused its discretion in
denying his motion for severance.        He argues that he was prejudiced
by the joinder because the jury heard evidence that was admissible
only against Wheeler, including co-conspirator’s statements and
Wheeler’s inculpatory statement to the FBI.


       Assuming   for   purposes   of    analysis   that   defendants    were
properly joined, Fed. R. Crim. P. 8(b) (defendants may be charged
in the same indictment if they are alleged to have participated in
the same act constituting an offense), we think this is the rare
case in which severance should have been granted pursuant to Fed.
R. Crim. P. 14 because there is a serious risk that the joint trial
prevented the jury from making a reliable judgment about guilt or
innocence.     Zafiro v. United States, 506 U.S. 534, 539 (1993).
This is because evidence that the jury should not have considered
against Baker and that would not have been admissible if Baker had
been   tried   alone    was   admitted   against    Wheeler,   Baker’s    co-
defendant.     Most of the evidence was properly admissible only


       3
      There was some uncertainty about whether Baker intended to
dismiss his appointed counsel and his appeal because, after the
briefs had been filed, Baker submitted several pro se motions,
including what was in effect a motion to voluntarily dismiss his
appeal. We remanded the case to the district court for the limited
purpose of holding an evidentiary hearing on this question. After
conducting a telephone status conference with counsel and reviewing
affidavits from Baker, the district court concluded that Baker did
not want to dismiss his appointed counsel or his appeal and that
therefore no evidentiary hearing was necessary. We appreciate the
district court’s prompt attention to this matter.

                                   -10-
against   Wheeler.   Baker   and   Wheeler   were   not   charged   with
conspiracy.   As discussed below, the conspiracy alleged involved




                               -11-
Wheeler, Henderson and Oelrich, but not Baker.                           Co-conspirator’s
statements that the jury should not have considered against Baker
and that would not have been admissible against Baker if Baker had
been tried alone were admitted against Wheeler.                         Id.    As discussed
below, the advertisements and the book cover, which were very
prejudicial       and   highly       inflammatory,         were    admissible         against
Wheeler only.        In addition, Wheeler’s inculpatory statement to the
FBI was evidence that was probative of Baker’s guilt (Wheeler’s
statement does not incriminate Baker on its face but arguably does
so    only    when    linked    to    other    evidence)          but    was    technically
admissible only against Wheeler.               Id.    Even though the issues and
the     evidence     were     relatively      straight-forward,               the    risk    of
substantial prejudice from the spillover effect of the conspiracy
evidence and the documents was too high to be cured by less drastic
measures, such as the limiting instructions given by the district
court.       This is especially true in light of the extremely serious
and     admittedly      sensational      nature       of     the        offense      charged.
Moreover, this is not the kind of case in which we can say, in
light of the jury’s verdict, that the jury was able to compart-
mentalize the evidence as it related to each defendant.                             See, e.g.,
United States v. Flaherty, 76 F.3d 967, 972 (8th Cir. 1996) (fact
that jury did not convict both defendants of both counts is
evidence of its ability to analyze and distinguish evidence as to
each); United States v. Davidson, 936 F.2d 856, 861 (6th Cir.
1991).    Baker and Wheeler were charged together, in one count, with
aiding and abetting the other in knowingly possessing ricin for use
as a weapon.


        For this reason, we reverse Baker’s conviction and remand his
case to the district court for further proceedings.                           We discuss the
other    issues      raised    by    Baker    and    the    issues       raised       by    both
defendants because they could become issues if Baker is retried.


                                          -12-
BAKER-- COLETTE BAKER’S STATEMENTS


     Baker also argues the district court abused its discretion in
admitting into evidence Colette Baker’s statements to the sheriff’s
receptionist that the coffee can contained “Maynard” and that the
contents were only dangerous if mixed together.           Baker argues that
these statements were inadmissible hearsay.           Fed. R. Evid. 801(c).
We agree.   These statements were made by the declarant (Colette
Baker) out of court and were offered, through the testimony of the
sheriff’s receptionist, to prove the truth of the matters asserted
therein, that is, that the coffee can contained “Maynard,” the
contents were only dangerous if mixed together, and, by reasonable
inference, Baker’s knowledge about the coffee can, its contents and
its dangerousness.    These statements do not fall within any of the
hearsay exceptions and therefore were not admissible.


WHEELER-- CO-CONSPIRATOR’S STATEMENTS


     Wheeler argues the district court abused its discretion in
admitting   into    evidence   co-conspirator’s        statements      made    by
Henderson   and    Oelrich.    The    co-conspirator’s     statements         were
admitted against     Wheeler   only.        Wheeler   argues   there    was    no
evidence that he was involved in a conspiracy with Oelrich and
Henderson and that, even if there was evidence of a conspiracy, the
statements were not made in furtherance of the conspiracy.                     He
argues the evidence showed only that he associated with Oelrich and
Henderson, knew about their activities and had listened to their
conversations.     We disagree.


          [Fed. R. Evid.] 801(d)(2)(E) is the coconspirator
     exception to the hearsay rule.      “As a general rule,
     statements made by a coconspirator in furtherance of the
     unlawful association . . . are properly admissible
     against all conspirators, whether or not a conspiracy is

                                     -13-
actually charged.”      Before admitting the disputed
statements, the District Court must find by a
preponderance of the evidence [and can consider the very




                         -14-
     hearsay statements sought to be admitted] that a
     conspiracy existed to which the declarant and the
     defendant were parties and that the statements were made
     in furtherance of the conspiracy.

          . . . .

          A statement that simply informs a listener of the
     declarant’s   criminal   activities  is   not  made   in
     furtherance of the conspiracy; instead, the statement
     must “somehow advance the objectives of the conspiracy.”


United States v. Mitchell, 31 F.3d 628, 631-32 (8th Cir. 1994)
(citations omitted).


     The co-conspirator’s statements and other evidence, including
Wheeler’s inculpatory statement to the FBI, established by a
preponderance of the evidence that Wheeler, Henderson and Oelrich
were involved in a conspiracy to manufacture and knowingly possess
ricin for use as a weapon.   The evidence showed that Wheeler had
heard Henderson and Oelrich and others discuss mixing ricin with
DMSO and aloe vera gel and using it to kill people, including
unspecified government officials; Wheeler knew that ricin was
poisonous and dangerous to handle; castor beans ordered by Oelrich
from Maynard Campbell were delivered to Wheeler’s house; Wheeler
gave the castor beans to Henderson; Henderson “processed” the
castor beans in Wheeler’s shed; and Henderson stored the ricin in
Wheeler’s shed for several months.     Henderson’s and Oelrich’s
statements were not merely informative; they attempted to involve
Loverink in their criminal activities and succeeded in persuading
Loverink to store the ricin in his workshop for two weeks.      The
district court did not abuse its discretion in admitting into
evidence against Wheeler the co-conspirator’s statements made by
Henderson and Oelrich.




                              -15-
DOCUMENTS


      Both defendants argue the district court erred in admitting
into evidence certain documents, specifically, advertisements for
castor beans from the CBA Bulletin (Gov’t Exs. 6 (Mar. 1991), 7
(Apr. 1991)) and the cover of a book titled Silent Death (Gov’t
Ex. 13).    Defendants argue that there was no evidence that they had
in fact ever seen the advertisements or the book cover and that the
documents were inflammatory and highly prejudicial.        The advertise-
ments and the book cover include the words “silent death” in a
distinctive typeface and a skull-and-crossbones illustration.             FBI
special agent Lynch testified that the text of the advertisements
incorporate references to the title of the book.          The book itself
was not admitted into evidence, and defense objections to questions
about its contents were sustained.


      The district court did not abuse its discretion in admitting
these documents into evidence against Wheeler.         The advertisements
and   the   book   cover   were   relevant   and   probative   evidence   of
Wheeler's knowledge that ricin could be used as a weapon (or at
least was advertised as such).        The advertisements explained why
Wheeler (and others) called the ricin “Maynard,” showed how castor
beans could be purchased by mail order from Maynard Campbell’s
Avenging Angel Supply, and described ricin (rather sensationally)
as a “tool of justice” and as a “Silent Death for those who hate
God, Freedom and this Republic!”


      However, we do not think the documents should have been
admitted against Baker.      Unlike Wheeler, who had admitted knowing
about the advertisements in the CBA Bulletin and about processing
castor beans into ricin, there was no evidence that Baker had ever
seen or knew about the advertisements, the CBA Bulletin, or the


                                    -16-
book, or that he was part of the conspiracy.   The advertisements
and the book cover, which provided a graphic nexus between castor




                              -17-
beans, Maynard Campbell and the use of ricin as a weapon, can only
have had an extremely prejudicial impact on the jury.


JURY SELECTION


     Both defendants argue the district court erred in denying
their motion for trial in, or for a jury drawn from, the division
where the offense occurred.   Defendants argue that their statutory
and sixth amendment rights to a jury drawn from the community where
the offense occurred were violated because the jury was not drawn
from Division 6, where the offense occurred, but instead from
Division 3, where the trial was held.   (Jurors were also drawn from
Division 1.)   We disagree.   There is no statutory or constitutional
right to a jury drawn either from the entire judicial district or
from the division in which the offense occurred.        E.g., United
States v. Balistrieri, 778 F.2d 1226, 1229 (7th Cir. 1985) (jury
need not be selected from division in which crime committed), cert.
denied, 477 U.S. 908 (1986); Zicarelli v. Dietz, 633 F.2d 312,
317-18 (3d Cir. 1980) (no constitutional right to jury chosen from
division where offense was committed or from entire district which
includes that division), cert. denied, 449 U.S. 1083 (1981).


INTERSTATE OR FOREIGN COMMERCE NEXUS-- LOPEZ DEFENSE


     Next, both defendants argue 18 U.S.C. § 175 is not a valid
exercise of congressional power under the commerce clause in light
of United States v. Lopez, 115 S. Ct. 1624 (1995), because there is
no substantial nexus between interstate or foreign commerce and the
offense of possession of ricin for use as a weapon.        In United
States v. Lopez the Supreme Court held that Congress exceeded its
authority under the commerce clause when it enacted the Gun-Free
School Zones Act, which made it a federal offense knowingly to
possess a firearm within 1000’ of a school, because that activity

                                 -18-
had no     substantial   relation   to   interstate   commerce.   Id.   at
1629-30.    The statute, by its terms, had “nothing to do with




                                    -19-
commerce    or    any   sort    of    economic       enterprise,”     contained     “no
jurisdictional element which would ensure, through case-by-case
inquiry, that the firearm possession in question affects interstate
commerce, and there were no congressional findings that would have
enabled the Court “to evaluate the legislative judgment that the
activity in question substantially affected interstate commerce.”
Id. at 1630.


      Defendants did not raise this issue in the district court and
raise this issue for the first time on appeal.                      (Wheeler amended
his brief on appeal to join Baker in raising this issue.)                           In
pre-trial        motions       defendants          argued     the     statute       was
unconstitutional because it was vague and overbroad.                   At sentencing
Baker argued the statute was unconstitutional on several grounds
but did not raise the commerce clause issue.                  The failure to raise
the issue in the district court constitutes a waiver of the issue.
E.g., United States v. Flaherty, 76 F.3d at 973 (failure to raise
Lopez issue in district court resulted in waiver); see also United
States v. Baucum, 317 U.S. App. D.C. 63, 80 F.3d 539 (1996) (per
curiam) (opinion denying petition for rehearing) (Lopez challenge
held nonjurisdictional and thus waived by failure to raise it in
trial court), petition for cert. filed, No. 96-1501 (U.S. July 8,
1996).    Although the Supreme Court decided Lopez on April 26, 1995,
several months after defendants’ trial in February 1995, this is
not   a   case    in    which      the     law    changed    so   dramatically      and
unexpectedly so as to excuse the failure to raise the issue in the
district    court.         Lopez     was    argued    to    the   Supreme   Court    on
November 8, 1994, and the commerce clause arguments were widely
known.    Defendants were indicted in July 1994, the trial was held
in February 1995, and Baker was sentenced on May 18, 1995, and
Wheeler on June 1, 1995.           Defendants could have raised the commerce
clause arguments either at trial or at sentencing.


                                           -20-
SUFFICIENCY OF THE EVIDENCE


        Both defendants argue the evidence was insufficient to support
the jury verdict.         Baker does not dispute that he possessed the
ricin; he argues there was insufficient evidence that he possessed
the ricin for use as a weapon or aided and abetted another in
possessing the ricin for use as a weapon.                Wheeler does dispute the
sufficiency of the evidence of possession.                     Wheeler argues there
was insufficient evidence that he exercised any dominion or control
over the ricin, possessed it for use as a weapon or aided and
abetted another in possessing the ricin for use as a weapon and
that he was merely an innocent bystander.                 We disagree.


     “The      standard      of   review    of     an    appeal     concerning        the
sufficiency of the evidence is very strict, and the verdict of the
jury should not be overturned lightly.”                  United States v. Burks,
934 F.2d 148, 151 (8th Cir. 1991).                 “The jury’s verdict must be
upheld if there is an interpretation of the evidence that would
allow     a   reasonable-minded      jury     to    conclude       guilt     beyond     a
reasonable doubt.”        United States v. Erdman, 953 F.2d 387, 389 (8th
Cir.), cert. denied, 505 U.S. 1211 (1992).                       “In reviewing the
sufficiency of the evidence on appeal, the court views the evidence
in   the      light   most    favorable     to     the    government,        resolving
evidentiary conflicts in favor of the government, and accepting all
reasonable inferences drawn from the evidence that support the
jury’s verdict.”      Id.    “A conviction may be based on circumstantial
as well as direct evidence.            The evidence need not exclude every
reasonable      hypothesis    except    guilt.”          Id.     “If   the    evidence
rationally supports two conflicting hypotheses, the reviewing court
will not disturb the conviction.”           United States v. Burks, 934 F.2d
at 151.




                                       -21-
[W]e must determine whether the facts so viewed
sufficiently proved the elements of aiding and abetting,
which are: (1) that the defendant associated with the
illegal activity; (2) that the defendant participated in




                         -22-
      it as something he or she wished to bring about; and
      (3) that the defendant sought by his or her actions to
      make the activity succeed.


United States v. Robinson, 782 F.2d 128, 130 (8th Cir. 1986).


      On the one hand, “[m]ere association between the
      principal and those accused of aiding and abetting is not
      sufficient to establish guilt; nor is mere presence at
      the scene and knowledge that a crime was to be committed
      sufficient to establish aiding and abetting.” On the
      other hand, “there are circumstances where presence
      itself implies participation-- as where a 250-pound
      bruiser stands silently by during an extortion attempt,
      or a companion stands by during a robbery, ready to sound
      a warning or give other aid if required.” In sum, the
      line that separates mere presence from culpable presence
      is a thin one, often difficult to plot.


United   States   v.   Ortiz,   966    F.2d   707,   712   (1st   Cir.   1992)
(citations omitted), cert. denied, 506 U.S. 1063 (1993).


      We have reviewed the evidence and hold there was sufficient
evidence to support the jury verdict that Baker knowingly possessed
ricin for use as a weapon.       The government showed that ricin is
extremely toxic, deadly in extremely small quantities, and very
difficult to detect, there is no known antidote, and has been
popularized in various publications as a method to kill people.
The handwritten note, which was addressed to “Doug” and found
inside the coffee can, contained information about the dangerous-
ness of the contents and the precautions to be used in handling it.
Although there was no direct evidence that Baker had in fact read
the note, the jury could have reasonably inferred that he had done
so.   The jury could have also inferred that the note was from
Wheeler; Wheeler's fingerprints were found on rubber gloves inside
the coffee can and on the coffee can itself.         Baker admitted in his



                                      -23-
statement to the FBI that he knew that ricin was dangerous and had
to be handled with extreme care.   The jury could have found that




                              -24-
Baker’s statements that he intended to use ricin to kill garden
pests and that he did not know who had given it to him were false.


     We also hold the evidence was sufficient to support the jury
verdict that Wheeler possessed ricin for use as a weapon or that he
aided and abetted another in possessing ricin for use as a weapon.
The evidence showed that Wheeler’s fingerprints were found on the
outside of the coffee can and in one of the rubber gloves found
inside the coffee can.         As noted above, the ricin, the handwritten
note and the rubber gloves were found inside the coffee can.
Wheeler admitted in his statement to the FBI that he knew that
ricin    was   a   deadly     poison   and    had   to   be   handled    extremely
carefully, that Oelrich had ordered the castor beans from Maynard
Campbell, and that Henderson had processed the castor beans and
stored    them     in   his   (Wheeler’s)     shed.      In     addition    to   the
government’s       evidence    about   ricin’s      toxicity,    there     was   also
evidence that Wheeler had heard Henderson and Oelrich discuss using
ricin to kill people.         The jury could have reasonably inferred from
the evidence that, had Wheeler been merely an innocent bystander,
he would not have assisted Oelrich and Henderson or listened to
their discussions about using ricin to kill people.                “Jurors can be
assumed to know that criminals rarely welcome innocent persons as
witnesses to serious crimes and rarely seek to perpetrate felonies
before larger-than-necessary audiences.”                 Id. (discussing mere
presence/ innocent bystander defense).


     Accordingly, we affirm Wheeler’s conviction and sentence, but
we reverse Baker’s conviction and remand his case to the district
court for further proceedings.         Wheeler’s motion to amend his brief
on appeal is granted.




                                       -25-
HANSEN, Circuit Judge, dissenting in part.


     I respectfully dissent from that part of the court's opinion
which reverses Douglas Allen Baker's conviction for the singular
reason that the district court did not sever his trial from that of
his co-defendant, Leroy Charles Wheeler.4          I concur in that part of
the opinion which affirms Wheeler's conviction and sentence.


     In my view, there is little reason to find this to be the rare
case in which severance should have been granted.               This was a
single count indictment naming Wheeler and Baker as the only
defendants; each was charged with aiding and abetting the other in
knowingly possessing ricin for use as a weapon.            The trial court
went to some length to instruct the jury with respect to what
evidence was admissible against which defendant, and to inform the
jury that each defendant was to be judged only on that evidence
which was admitted against that defendant.


     I start with a proposition not mentioned in our court's
opinion -- that severance is a matter committed to the sound
discretion of the district court, and it is only when the district
court       abuses   that   discretion   and   a   defendant   can   clearly
demonstrate "severe or compelling prejudice" resulting therefrom
that the nonsevered defendant is entitled to a new trial.             United
States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir. 1995) (internal
quotations omitted).


     "There is a preference in the federal system for joint trials
of defendants who are indicted together."          Zafiro v. United States,

        4
      As I read the court's opinion, it does not reverse Baker's
conviction for evidentiary error but instead finds the evidence
against Baker sufficient to support the jury's guilty verdict.
Ante at 14.

                                     -26-
506 U.S. 534, 537 (1993).    Joint trials promote efficiency and
serve the interests of justice.    Id.   Richardson v. Marsh, 481 U.S.




                                  -27-
200, 209-10 (1987).      A defendant seeking severance has the heavy
burden of demonstrating that the joint trial will impermissibly
infringe on his right to a fair trial.        United States v. Darden, 70
F.3d 1507, 1527 (8th Cir. 1995), cert. denied, 116 S. Ct. 1449
(1996); United States v. Adkins, 842 F.2d 210, 212 (8th Cir. 1988).
The   appellant   must   demonstrate   that    the     jury   was   unable   to
compartmentalize the evidence as it relates to the two defendants.
Adkins, 842 F.2d at 212.


      The court finds prejudice because evidence was presented to
the jury against Wheeler which would not have been admissible if
Baker were tried separately.    But that happens in most every trial
where there is more than one defendant, and limiting instructions
are usually deemed sufficient to cure any risk of prejudice.                 See
Richardson, 481 U.S. at 206-208.       When Loverink testified for the
government about the conspiracy, the court was very careful to tell
the jury not once, but twice, that it could not use Loverink's
testimony   against   Baker.    (Tr.     at   246-47    (before     Loverink's
testimony); Tr. at 313-14 (after Loverink had testified).)                   The
court relies on Zafiro, but Zafiro only says that a risk of
prejudice "might" occur when such evidence is admitted.                      Our
court's opinion grants relief without showing how the facts of this
case turn "might occur" into "did occur."            The court also finds
prejudice because Wheeler's inculpatory statement (which the court
agrees did not implicate Baker on its face but arguably does so
when linked to other evidence) was admitted against Wheeler at the
joint trial.      The district court gave the jury the following
instruction at the time the evidence about Wheeler's statement was
offered:


           THE COURT: Now, members of the Jury, I'm
      going to give you another instruction at this
      time concerning this witness' testimony relating


                                  -28-
to the certain statements alleged to have been
made by the Defendants.

     You're about to hear testimony concerning
statements made by the Defendants, as I said.
You may consider the




                        -29-
        statement of defendant Wheeler only in the case
        against him and not in the case against defendant
        Baker. What that means is that you may consider
        defendant Wheeler's statement in the case against
        him, and for that purpose rely on it as much or
        as little as you think proper. But you may not
        consider or discuss that statement in any way
        when you are deciding if the Government has
        proved beyond a reasonable doubt its case against
        defendant Baker.


(Tr. at 372-73.)


        Such a procedure was expressly approved by the Supreme Court
in Richardson v. Marsh, 481 U.S. at 211 (no Confrontation Claim
violation when nontestifying codefendant's statement which has been
redacted to eliminate the codefendant's name and any reference to
the codefendant's existence is admitted at joint trial).               In its
final instructions the jury was told that it must give separate
consideration to the evidence about each individual defendant and
that each defendant was entitled to be treated separately.             (Tr. at
558.)    There is nothing in this record to indicate the jury failed
to follow its instructions.


        This   was   a   simple,   straightforward   trial   raising   basic,
noncomplex issues of possession and intent.             The jury was only
dealing with one count and two defendants.            Only five witnesses
were called by the government.          The court's limiting instructions
were clear, correct, and appropriately given.            Our court reasons
that relief should be granted in part because "this is not the kind
of case in which we can say, in light of the jury's verdict that
the jury was able to compartmentalize the evidence as it related to
each defendant."         The court's statement is true, but it is true in
every case where there is but a single count and two defendants.
Absent a finding of not guilty as to one of the two defendants,
there is no way the jury's verdict proves or disproves its ability

                                      -30-
to compartmentalize the evidence.   Because that is so, no inference
either way can be drawn from this jury's verdict.    The burden




                               -31-
remains on the defendant to show "real prejudice."                     Adkins, 842
F.2d at 212.


     Clearly, more evidence was presented against the defendant
Wheeler than against the defendant Baker.            But that in itself is no
basis for finding that the trials should have been severed.                 United
States v. Davis, 882 F.2d 1334, 1340 (8th Cir. 1989) ("'Severance
is not required merely because the evidence against one defendant
is more damaging than the evidence against another.                      Severance
becomes necessary where the proof is such that a jury could not be
expected to compartmentalize the evidence as it relates to separate
defendants.'") (quoting United States v. Faul, 748 F.2d 1204, 1217
(8th Cir.     1984),   cert.    denied,     472   U.S.   1027    (1985))    (other
internal quotations omitted), cert. denied, 494 U.S. 1029 (1990).


     In Davis, we held that a case involving two defendants, no
complex issues, three days of trial, and eight counts was "a case
[where] a jury undoubtedly is capable of properly compartmen-
talizing the evidence."            882 F.2d at 1340 (citations omitted)
(emphasis added).      The case at bar is also one where the jury
undoubtedly was capable of compartmentalizing the evidence pursuant
to the experienced district court's clear instructions.                   There is
nothing in this record to indicate to the contrary.


     To the extent that our court relies on the district court's
evidentiary error in admitting against Baker the advertisement for
the castor beans from the CBA Bulletin and the book cover from
Silent Death as proof that Baker suffered severe prejudice from the
district court's denial of his severance motion, ante at 7, 11, I
believe the court's reliance to be misplaced.                   Granting Baker a
separate trial    would      not   have   prevented      the    same    error    from
occurring because there is no reason to believe that at a separate
trial   for   Baker,   the     government    would    not      have    offered   the

                                      -32-
documents against him or that the district court would not have let
them in.   The two issues of evidentiary error by the district




                               -33-
court and a jury's ability or inability to compartmentalize the
admitted evidence appear to me to be separate and independent, with
neither impacting the other.


     Because the defendant Baker has failed to carry his burden of
demonstrating "real prejudice" caused by the joint trial (as
opposed to evidentiary error), he has also failed to show that the
district court abused its broad discretion in denying his Rule 14
severance motion.    Consequently, I would affirm Baker's conviction
and sentence.


     Accordingly, I respectfully dissent.


     A true copy.

          Attest:

                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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