           Case: 12-15883   Date Filed: 08/27/2013   Page: 1 of 13


                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15883
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:11-cr-00316-SLB-TMP-2


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ANTHONY DEE MCANALLEY,
a.k.a. Tony McAnalley,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                             (August 27, 2013)

Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 12-15883      Date Filed: 08/27/2013      Page: 2 of 13


       Anthony Dee McAnalley appeals his conviction by a jury for solicitation to

commit arson under 18 U.S.C. § 373. McAnalley argues that the district court

abused its discretion in not admitting certain evidence, in rejecting several of

McAnnalley’s requested jury charges, and in responding to a jury question.

McAnnalley also argues that the cumulative effect of prosecutorial misconduct

denied him a fair trial.

                                              I.

       This case arose out of an arson that took place at the Sidelines Sports Bar

and Deli (Sidelines) in Muscle Shoals, Alabama, in December 2010. McAnalley’s

employee, Donald Duncan, was the prosecution’s chief witness at trial, and in

return for his testimony the government agreed not to prosecute. Duncan testified

that McAnalley offered him $5,000 to burn down Sidelines because Ron Jeffreys,

who Duncan believed to be the manager of Sidelines, owed McAnalley $25,000.

Duncan ultimately offered his nephew, Sean Jordan, $2,500 to carry out the arson

instead. 1 Jordan accepted Duncan’s offer, committed the arson, and was paid by

Duncan. Duncan testified that after he told McAnalley that the arson had been

committed by his nephew, Duncan received $100, $1,000, and 1 ounce of

marijuana as initial payments from McAnalley.

1
 Jordan testified that Duncan told him that the owner, “Tony,” wanted the place to be burned
down. The property, however, was in fact owned by Metro Properties, run by Kenneth Crump,
and Sidelines itself was owned by Game On, Inc., incorporated in the name of Tad Drake with
Ron Jeffreys as a silent partner.
                                              2
              Case: 12-15883    Date Filed: 08/27/2013   Page: 3 of 13


      As McAnalley explains on appeal, at trial, his defense tried “to show and

argue that the operators [of Sidelines], [Tad] Drake and [Ron] Jeffreys had the real

motive for burning [Sidelines], as their business was failing, [and] they had not

paid debts or the land owner.” For instance, on cross-examination of Kenneth

Crump, the owner of Metro Properties, LLC, and Sidelines’s landlord, McAnalley

elicited testimony that Sidelines sometimes had trouble paying its rent and had not

made a certain $25,000 payment on time.

      McAnalley also tried to show that Drake and Jeffreys, not McAnalley, had

benefited from insurance proceeds in the wake of the fire. Drake testified that

Game On had received $56,000 in insurance proceeds. Drake also testified that the

underwriters had included a “Tom McAnalley” on the policy. However, there was

no testimony from any insurance agents, Drake, or McAnalley himself about

whether McAnalley received any insurance money.

                                       II.

      McAnalley argues on appeal that he was unable to sufficiently present a

defense relating to Game On’s financial health because the district court abused its

discretion in excluding four months of financial records totaling roughly 1,800

pages. Specifically, when McAnalley sought to have the records entered into

evidence, the court excluded the records under Federal Rule of Evidence 403

because, even if they were relevant, there was undue prejudice and they would


                                             3
              Case: 12-15883     Date Filed: 08/27/2013    Page: 4 of 13


likely confuse the jury because they were complex, and reflected the finances of

three businesses, when only one was involved in the arson.

      “We review the district court’s rulings on admission of evidence for abuse of

discretion.” United States v. Jimenez, 224 F.3d 1243, 1249 (11th Cir. 2000).

Thus, we will affirm unless “the district court has made a clear error of judgment,

or has applied an incorrect legal standard.” Piamba Cortes v. Am. Airlines, Inc.,

177 F.3d 1272, 1306 (11th Cir. 1999) (quotation marks omitted).

      A defendant has the constitutional right under the Fifth and Sixth

Amendments to present a defense. United States v. Frazier, 387 F.3d 1244, 1271

(11th Cir. 2004) (en banc). “[A] defendant must generally be permitted to

introduce”: evidence directly pertaining to any element of the charged offense or

an affirmative defense; “evidence pertaining to collateral matters that, through a

reasonable chain of inferences, could make the existence of one or more of the

elements of the charged offense or an affirmative defense more or less certain”;

and/or evidence that “tends to place the story presented by the prosecution in a

significantly different light.” United States v. Hurn, 368 F.3d 1359, 1363 (11th

Cir. 2004). Additionally, “a defendant generally has the right to introduce

evidence that is not itself tied to any of the elements of a crime or affirmative

defense, but that could have a substantial impact on the credibility of an important

government witness.” Id. Typically, a defendant may present evidence of third-


                                           4
                Case: 12-15883       Date Filed: 08/27/2013       Page: 5 of 13


party guilt. See Holmes v. South Carolina, 547 U.S. 319, 330–31, 126 S. Ct. 1727,

1734–35 (2006) (holding that a state law preventing evidence of third-party guilt

was “arbitrary” and thus “violate[d] a criminal defendant’s right to have a

meaningful opportunity to present a complete defense” (quotation marks omitted)).

In a case involving the arson of an insured building, evidence of the business’s

financial problems may be relevant as proof of the defendant’s motive for

committing the crime. Vicksburg Furniture Mfg., Ltd. v. Aetna Cas. & Sur. Co.,

625 F.2d 1167, 1171–72 (5th Cir. 1980); 2 see also United States v. Utter, 97 F.3d

509, 512 (11th Cir. 1996) (holding that substantial evidence that a restaurant was

having financial difficulties was sufficient circumstantial evidence to support an

arson conviction).

       However, “[t]he accused does not have an unfettered right to offer testimony

that is incompetent, privileged, or otherwise inadmissible under standard rules of

evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653 (1988). Rule

403 provides that relevant evidence may be excluded “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403.


2
 In Bonner v. City of Prichard, this Court accepted as binding precedent all Fifth Circuit cases
decided before October 1, 1981. 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).


                                                5
              Case: 12-15883     Date Filed: 08/27/2013    Page: 6 of 13


      And in any event, “error in the admission or exclusion of evidence is

harmless if it does not affect the substantial rights of the part[y].” United States v.

Cameron, 907 F.2d 1051, 1059 (11th Cir. 1990) (quotation marks omitted); see

Fed. R. Evid. 103(a); Fed. R. Crim. P. 52(a). We will therefore reverse only if the

complaining party establishes that the evidentiary ruling resulted in a substantial

harm, thus warranting reversal of the jury’s verdict. Cameron, 907 F.2d at 1059.

      Here, the district court did not abuse its discretion when it refused to risk

confusion by admitting complex financial statements that combined, without

designation among each business, figures from two other businesses not involved

in the arson. See Fed. R. Evid. 403.

      Also, even if the court erred in not admitting the statements, McAnalley fails

to show that the error affected his substantial rights. See Cameron, 907 F.2d at

1059. According to McAnalley, his purpose in introducing the financial statements

was to alert the jury to Game On’s poor financial state to demonstrate a motive for

Sidelines’s owners to burn it down. McAnalley successfully elicited testimony

from a number of witnesses illustrating Game On’s financial difficulties. It is

unclear what additional information the jury would have gleaned from the more

extensive financial statements that even Drake had trouble deciphering.

McAnalley therefore fails to meet his burden to demonstrate that he was

substantially prejudiced by the district court’s evidentiary ruling.


                                           6
             Case: 12-15883     Date Filed: 08/27/2013   Page: 7 of 13


                                        III.

      McAnalley also argues that the court abused its discretion by rejecting his

three requested jury charges and that the court improperly responded to a question

from the jury. Specifically, McAnalley requested the following three jury charges:

Charge A stated that the government claimed that McAnalley violated the law in

order to obtain insurance proceeds, and that he denied this, as he had no insurable

interest in the property, his name was associated with the insurance policy due to

the mistake of others, and thus he could not have received any proceeds as a result

of the fire. Charge B generally described and discussed the requirement that

someone must have an “insurable interest” in order to receive insurance proceeds

and Charge C directly defined “insurable interest” under Alabama law. The court

did not give McAnalley’s Requested Charges A, B, and C on the basis that they

lacked a foundation in evidence, as there had been no testimony from the subject

insurance company or its agents.

      During the jury’s deliberation, it asked the following question of the court:

“We, the jury, are having a difficult time reaching a unanimous decision—we are

not able to determine if Duncan really received pay from McAnalley ($100,

$1,000, “pot”). If McAnalley did pay him, does the record show that his lawyers

refuted that McAnalley paid him anything?” The court informed the jury that it

could not comment on the evidence, and instead reread a large portion of its former


                                         7
              Case: 12-15883     Date Filed: 08/27/2013    Page: 8 of 13


instructions, including the elements of the offense, the government’s burden of

proof, and the defendant’s right not to testify.

      We review a claim that the district court refused to give an instruction for an

abuse of discretion. United States v. Morris, 20 F.3d 1111, 1114 (11th Cir. 1994).

Also, “[a] trial court’s response to a jury’s question is entrusted to its own sound

discretion and a conviction will not be reversed in the absence of an abuse of

discretion.” United States v. McDonald, 935 F.2d 1212, 1222 (11th Cir. 1991).

      The jury should be instructed on a theory of the defense, “[a]s long as there

is some basis in the evidence and legal support.” United States v. Zlatogur, 271

F.3d 1025, 1030 (11th Cir. 2001). As the Court explained in United States v.

Blanton:

      A district court’s refusal to give a requested instruction constitutes
      reversible error if and only if the instruction (1) is correct; (2) is not
      substantially covered by other instructions which were delivered; and
      (3) deals with some point in the trial so important that the failure to
      give this instruction seriously impairs the defendant’s ability to defend
      himself.

793 F.2d 1553, 1560 (11th Cir. 1986) (emphasis added) (quotation marks omitted).

      Here, the district court did not abuse its discretion by omitting McAnalley’s

Requested Charges, or in issuing its response to the jury’s question. Any

testimony about McAnalley’s alleged waiver or receipt of insurance proceeds took

place outside the presence of the jury, and later was excluded. Beyond that, the

jury did not hear any testimony from an insurance agent about the policy in
                                           8
               Case: 12-15883       Date Filed: 08/27/2013      Page: 9 of 13


question. Contrary to Requested Charge A, the government’s case did not hinge

on the theory that McAnalley solicited Duncan to commit arson in order to obtain

the insurance proceeds for himself. In fact, the government did not even argue

motive and explained in closing that “we don’t know why” McAnalley solicited

arson. Therefore, Requested Charge A lacked a basis in the evidence, and was

thus, properly rejected. See Zlatogur, 271 F.3d at 1030; Blanton, 793 F.2d at 1560.

For the same reasons, Charges B and C were properly refused as irrelevant.

       With respect to the court’s response to the jury’s question, McAnalley’s

argument is without merit, as the court merely informed the jurors that it could not

weigh the evidence for them, and repeated instructions it had already given to the

jury, including the government’s burden of proof.

                                             IV.

       Finally, McAnalley asserts that he was denied a fair trial in light of the

cumulative effect of prosecutorial misconduct in his case, including: a conceded

Brady/Giglio 3 violation; the failure to acknowledge a pre-trial stipulation to the

authenticity of documents; the withdrawal of an insurance stipulation; and a

misrepresentation of ownership interests in Sidelines.

       We review a prosecutorial misconduct claim de novo. United States v.

Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “To establish prosecutorial

3
 See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); Giglio v. United States, 405 U.S.
150, 92 S. Ct. 763 (1972).
                                               9
             Case: 12-15883     Date Filed: 08/27/2013    Page: 10 of 13


misconduct, (1) the remarks must be improper, and (2) the remarks must

prejudicially affect the substantial rights of the defendant.” Id. (quotation marks

omitted). Where the prosecutorial misconduct involves delayed disclosure of

certain evidence, we reverse “only if the defendant can show prejudice.” United

States v. Bueno-Sierra, 99 F.3d 375, 379 (11th Cir. 1996) (quotation marks

omitted). We address a claim of cumulative error by first considering the merit of

each claim individually, and then examining the trial “as a whole to determine

whether the appellant was afforded a fundamentally fair trial.” United States v.

Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997).

      “Brady requires the prosecution to turn over to the defense any exculpatory

evidence in its possession or control.” United States v. Jordan, 316 F.3d 1215,

1226 n.15 (11th Cir. 2003). “Giglio requires the prosecution to turn over to the

defense evidence in its possession or control which could impeach the credibility

of an important prosecution witness.” Id. at 1226 n.16. “Impeachment evidence

should be disclosed in time to permit defense counsel to use it effectively in cross-

examining the witness.” Id. at 1253.

      McAnalley argues that the government’s pervasive misconduct, including an

early Brady/Giglio violation, rendered the trial unfair. First, he argues the

government committed a Brady/Giglio violation when it did not disclose that it had

a deal with Duncan for his testimony and allowed Duncan to testify on direct that


                                          10
             Case: 12-15883      Date Filed: 08/27/2013    Page: 11 of 13


he “hope[d]” he would not be prosecuted. However, the court did not sanction the

government because the violation was handled after direct, when McAnalley was

allowed to cross-examine Duncan about the deal, and did. Because the district

court timely handled the violation, and the relevant information was revealed to the

jury, McAnalley was not substantially prejudiced. See, e.g., Bueno-Sierra, 99

F.3d at 379–80 (holding that the government’s failure to disclose a key government

witness’s prior inconsistent statement until the seventh day of the trial was

improper, but the defendant was not prejudiced because he was able to fully

explore the issue on cross examination).

      McAnalley also argues that the government engaged in misconduct,

improperly allowed by the district court, when the government refused to honor a

pre-trial stipulation as to the authenticity of Game On’s financial records. But the

government’s actions were not improper because it never stipulated to the

admission of these records, and the defense was allowed to question a number of

witnesses about Sidelines’s financial condition. Rather, during a pre-trial hearing,

the government agreed to stipulate to the authenticity of some 1,800 pages of

records, but clarified that it was “not going to stipulate that they’re in evidence.”

The court agreed to the stipulation regarding the documents’ authenticity, but

reserved its right to rule on their admissibility during the trial. On this record,

there was neither misconduct by the prosecution nor error by the court in later


                                           11
             Case: 12-15883       Date Filed: 08/27/2013   Page: 12 of 13


allowing the government to challenge the evidence on grounds other than

authenticity, such as Rule 403.

      McAnalley also argues that the government engaged in misconduct when it

withdrew a stipulation that no insurance proceeds had been paid to anyone,

including McAnalley. Initially, the parties agreed to stipulate that “[t]he

defendant did not make [or has not made] any claim on any insurance policy and

no proceeds have been paid out to any person.” However, the court and the

government later learned through Drake’s testimony that Drake, through Game On,

had actually received proceeds under the policy. Therefore, the government’s

decision not to stipulate to the factually incorrect statement that no insurance

proceeds had been paid to McAnalley or anyone else did not amount to

misconduct. Furthermore, the court agreed to allow McAnalley to illicit testimony

as to whether he had made a claim and instructed the jury that there was “no

evidence of anything in . . . regard” to whether McAnalley received insurance

proceeds. Thus, there was no prejudice due to the failure to stipulate. See

Eckhardt, 466 F.3d at 947

      Finally, McAnalley argues that the government misconstrued facts regarding

the Sidelines’s ownership interests, but the record does not support this assertion.

Even if the government had misrepresented the interests, the crux of the

government’s case was not focused on who owned the Sidelines, but rather on


                                           12
             Case: 12-15883      Date Filed: 08/27/2013    Page: 13 of 13


McAnalley’s role in asking Duncan to set fire to it. See United States v. Baker,

432 F.3d 1189, 1223 (11th Cir. 2005) (pointing to the strength of the government’s

case as a factor in determining whether any errors resulted in prejudice). On this

record, the cumulative effects of any errors resulting from the government’s

actions did not result in the denial of McAnalley’s constitutional right to a fair trial.

      For these reasons, we affirm the conviction.

      AFFIRMED.




                                           13
