                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                         _________________________

                         Nos. 03-2239WA, 03-2394WA
                         _________________________

United States of America,            *
                                     *
           Appellee/Cross-Appellant, *
                                     *      On Appeal from the United
     v.                              *      States District Court
                                     *      for the Western District
                                     *      of Arkansas.
Kevin Manfre,                        *
                                     *
           Appellant/Cross-Appellee. *

                                  ___________

                             Submitted: January 13, 2004
                                Filed: May 11, 2004
                                 ___________

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.

                                         -2-
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.

                                         -3-
       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



                                         -4-
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.

                                          -5-
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


      1
        In the time since this case was submitted, the United States Supreme Court
announced its decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), a case of
great importance. Crawford solidified three broad principles. First, it states that "the
principal evil at which the Confrontation Clause was directed was the civil-law mode
of criminal procedure, and particularly its use of ex parte examinations as evidence
against the accused." Id. at 1363. Second, it holds that the Confrontation Clause bars
the introduction of "testimonial statements" of a witness who did not appear at trial,
and whom the defendant did not have the opportunity to cross-examine. Id. at 1365.
Third, it confirms that the residual body of our Confrontation Clause jurisprudence,
unchanged by either of the first two principles, remains in effect. See id. at 1374.
The Court in Crawford specifically left ambiguous the definition of "testimonial" but
did not leave us without some bench marks. Ibid. First, the Court instructs that "an
accuser who makes a formal statement to government officers bears testimony in a
sense that a person who makes a casual remark to an acquaintance does not." Id. at
1364. Second, the Court cites Justice Thomas's concurrence in White v. Illinois, 502
U.S. 346 (1992), as instructive as to the definition of "testimonial." Crawford, 124
S. Ct. at 1374. In White, Justice Thomas explains that "the Confrontation Clause is
implicated by extrajudicial statements only insofar as they are contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or confessions."
White, 502 U.S. at 365 (Thomas, J., concurring). Lastly, the Court in Crawford seems
directly concerned with repudiating the reliability test of Ohio v. Roberts, 448 U.S.
56 (1980), a case involving the introduction of preliminary-hearing testimony of an
unavailable witness against the defendant at trial. Given these clues, we believe that
Crawford has no effect on our decision. Mr. Rush's comments were made to loved
ones or acquaintances and are not the kind of memorialized, judicial- process-created
evidence of which Crawford speaks.

                                          -6-
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 statement must
'somehow advance the objective of the conspiracy.' " United States v. Mitchell, 31
F.3d 628, 632 (8th Cir. 1994). That said, we interpret the phrase "in furtherance of"
broadly. United States v. Gjerde, 110 F.3d 595, 603 (8th Cir. 1997). Thus, "[e]fforts
to conceal an ongoing conspiracy . . . can further the conspiracy by assuring that the
conspirators will not be revealed and the conspiracy brought to an end." United
States v. Phillips, 219 F.3d 404, 419 (5th Cir. 2000). A statement of a conspirator
which conceals the conspiracy without revealing any of the conspirators' illegal
objectives from one who appears suspicious is in furtherance of the conspiracy and
thus would be admissible under Rule 801(d)(2)(E). Mr. Rush's statement that he
would not disclose the nature of his conversations with Mr. Manfre was an act of
concealment that furthered the conspiracy by keeping it secret. Therefore, Mr.
Buttler's testimony was admissible under Rule 801(d)(2)(E).

       We turn now to Mr. Buttler's testimony that he overheard Mr. Rush discuss a
propane tank with Mr. Manfre and Mr. Buttler's testimony that Mr. Rush claimed that
he and Mr. Manfre were discussing possible promotional activities for the nightclub.
The District Court admitted the statements under Rule 801(d)(2)(E), and while we
agree in part, we feel that further discussion is required.

        The admission of Mr. Buttler's testimony that he overheard Mr. Rush say
"propane tank" did not involve a hearsay use of Mr. Rush's words. Rather, the fact
that the words were uttered, a fact of which the witness had personal knowledge, is
a fact in its own light from which an inference can be drawn connecting Mr. Rush and

                                          -7-
Mr. Manfre with a propane tank found at the scene of the nightclub explosion. This
is an example of a so-called "verbal act," a perhaps abused but still useful expression.
"The hearsay rule excludes out-of-court assertions used to prove the truth of the facts
asserted in them. Verbal acts, however, are not hearsay because they are not
assertions and not adduced to prove the truth of the matter." Mueller v. Abdnor, 972
F.2d 931, 937 (8th Cir. 1992). The relevant fact, admissible in evidence without
regard to Rule 801(d)(3)(E), is that Mr. Rush made the statement in question.

      The harder issue is the admission of Mr. Buttler's restatement of Mr. Rush's
explanation for discussing the propane tank with Mr. Manfre. The District Court
admitted Mr. Buttler's testimony under Rule 801(d)(2)(E), and that ruling was not an
abuse of discretion. One of the factors we look at in determining the reliability of a
coconspirator statement is the content of the statement, and whether it was
"corroborated by independent evidence." DeLuna, 763 F.2d at 910-11. In other
words, we look at whether the statement turned out to be correct. Here, the
discussion of the "promotional barbeque" seems to us a veiled suggestion of what
ultimately happened, and thus we are comfortable with its reliability.

      In either case, the statement was clearly intended to keep the truth of Mr.
Rush's and Mr. Manfre's ultimate plans from Mr. Buttler, and thus we agree that it
was made in furtherance of the conspiracy.

                                          B.

      Mr. Manfre also objects to the introduction of some of the testimony of Scott
Strozier. Mr. Strozier, who lived in Arkansas, was a friend of Mr. Rush. On April 4,
2001, during a return visit to Arkansas by Mr. Rush, Mr. Strozier made plans to meet
with Mr. Rush. Mr. Rush was late by some three or four hours. When he finally
arrived, Mr. Rush said that he had been talking with Mr. Manfre and could not say
what they had been talking about, but that Mr. Strozier would learn later. The basis

                                          -8-
on which the District Court admitted this testimony is not clear on the face of the
record. It seems it was admitted either under the present-sense-impression exception
to the hearsay rule, Fed. R. Evid. 803(1), or as a non-hearsay statement of a
coconspirator under Fed. R. Evid. 801(d)(2)(E). We agree with the latter ruling, in
part, but disagree with admission of this evidence under the present-sense-impression
exception to the general bar on the admission of hearsay testimony.

       Fed. R. Evid. 803(1) provides that "[a] statement describing or explaining an
event or condition made while the declarant was perceiving the event or condition,
or immediately thereafter" is admissible hearsay. "The underlying rationale of the
present sense impression exception is that substantial contemporaneity of event and
statement minimizes unreliability due to [the declarant's] defective recollection or
conscious fabrication." United States v. Blakey, 607 F.2d 779, 785 (7th Cir. 1979),
and see also United States v. Beck, 122 F.3d 676, 681-82 (8th Cir. 1997). Here, too
much time had passed between when Mr. Rush spoke with Mr. Manfre and when he
spoke with Mr. Strozier to call the transaction a present-sense impression. At the
very least, there was an intervening walk or drive between the time of the discussion
with Mr. Manfre and the time when Mr. Rush spoke with Mr. Strozier. The present-
sense-impression exception to the hearsay rule is rightfully limited to statements
made while a declarant perceives an event or immediately thereafter, and we decline
to expand it to cover a declarant's relatively recent memories. The opportunity for
strategic modification undercuts the reliability that spontaneity insures.

       While Mr. Strozier's testimony as to Mr. Rush's statements was not admissible
as a present-sense impression, the testimony is admissible in part and inadmissible
in part as non-hearsay statements of a coconspirator. The testimony was really two-
fold. First, Mr. Strozier testified that Mr. Rush explained his tardiness was due to his
conversations with Mr. Manfre. That statement was inadmissible hearsay. Although
it was made by a coconspirator, Mr. Rush, we cannot say that the mere declaration
that he was talking to Mr. Manfre advanced the conspiracy in any way. The

                                          -9-
admission of that testimony, however, was harmless, as we are firmly convinced that
the District Court's error had no, or only slight, influence on the jury. Mitchell, 31
F.3d at 632.

      The second component of Mr. Strozier's testimony, Mr. Rush's disclosure that
he could not disclose the contents of his conversation with Mr. Manfre but that Mr.
Strozier would learn soon, is admissible as a statement of a coconspirator. As
discussed in our analysis of Mr. Buttler's testimony, attempts at concealing the nature
of the conspiracy from an inquisitive acquaintance, even if no disclosure of the
conspiracy's illegal end occurs in the process, does further the conspiracy.

                                          C.

      Next, Mr. Manfre objects to the admission of the testimony of Jessica Van
Gaalen, Mr. Rush's fiancée and the mother of his child. Mr. Manfre's objection is
two-fold. First, he objects to the admission of Ms. Van Gaalen's testimony that, upon
discovering Mr. Rush looking over blueprints of the nightclub, Mr. Rush told her that
he was going to burn down the nightclub for Mr. Manfre. He argues that testimony
was inadmissible hearsay. Second, Mr. Manfre argues that a letter to Ms. Van
Gaalen, found in a hotel room that Mr. Rush rented the evening of the nightclub
explosion, should not have been admitted, again claiming that the testimony was
inadmissible hearsay. We disagree with both assertions. Ms. Van Gaalen's testimony
that Mr. Rush told her that he was going to burn down the nightclub was hearsay. It
did not advance the conspiracy and thus cannot be considered a coconspirator
statement under Fed. R. Evid. 801(d)(2)(E). Despite the testimony being hearsay,
however, we hold that the testimony was admissible under the hearsay exception for
declarations against penal interest.

      Fed. R. Evid. 804(b)(3) establishes an exception to the hearsay rule if the
declarant is unavailable to testify at trial, and the declarant made:

                                         -10-
             [a] statement which was at the time of its making so far
             contrary to the declarant's pecuniary or proprietary interest,
             or so far tended to subject the declarant to civil or criminal
             liability, or to render invalid a claim by the declarant
             against another, that a reasonable person in the declarant's
             position would not have made the statement unless
             believing it to be true. A statement tending to expose the
             declarant to criminal liability and offered to exculpate the
             accused is not admissible unless corroborating
             circumstances clearly indicate the trustworthiness of the
             statement.

See also Gjerde, 110 F.3d at 603. Being "unable to be present or to testify at the
hearing because of death" fits within the definition of unavailability. Fed. R. Evid.
804(a)(4). In addition, the trustworthiness of the statement must be clearly indicated.
Gjerde, 110 F.3d at 603.

       In the case at bar, we find that the statement made by Mr. Rush concerning the
blueprints and Mr. Manfre, clearly against his penal interest at the time it was made,
was reliable and was corroborated by later events. Mr. Rush made the statement to
his fiancée, and while a fiancée is not a wife, it is not unreasonable to read credibility
and honesty into such a relationship, especially given that the statement was not made
under a pending threat of prosecution. Also, later facts showed that Mr. Rush did in
fact burn down the nightclub, adding more support to our finding of reliability.

       Mr. Manfre further argues that even if the testimony were admissible as a
statement against penal interest it should not have been admitted because such
admission would violate the Confrontation Clause. He argues that in light of the
plurality opinion in Lilly v. Virginia, 527 U.S. 116 (1999) (holding statements
inculpating a defendant made by coconspirator to police after arrest for robbery are
inadmissible as against penal interest on Confrontation Clause grounds), we must
overturn the admission of Ms. Van Gaalen's testimony, because, he asserts, Lilly

                                          -11-
established as a matter of constitutional law that an out-of-court statement against
penal interest offered by a declarant accessory against the defendant never meets the
requisite reliability standards of the Confrontation Clause. He argues that there is too
great an incentive for the declarant to shift the blame, and that the Supreme Court
barred the admission of such testimony in Lilly. We disagree.

        As our analysis in United States v. Papajohn, 212 F.3d 1112, 1118-20 (8th Cir.
2000), shows, the context in which the statement is made is of significant import in
determining the statement's reliability for Confrontation Clause purposes. This is
true, in part, because "it can almost always be said that a statement made by a
declarant that incriminates another person in a crime will make it less likely that the
declarant will be charged for the crime. The extent to which this fact renders the
declarant's statement untrustworthy is a matter of degree." Id. at 1119. Thus, the
admission of a declarant's grand-jury testimony implicating the defendant satisfies
Lilly and the Confrontation Clause, id. at 1120, but a declarant's statements
implicating the defendant made while assisting the authorities in completing a
controlled drug delivery, did not. United States v. Chapman, 345 F.3d 630, 634-635
(8th Cir. 2003). There is far less an incentive for someone not the target of a grand
jury to lie than there is for a declarant who feels that he is in custody, or something
like it, and may become the target of a criminal investigation. Given the context and
content of Mr. Rush's statement, we believe that the admission of Ms. Van Gaalen's
testimony satisfied Lilly and the Confrontation Clause.

        As noted, Mr. Rush's statement to Ms. Van Gaalen was not made while facing
trial, but was instead made casually to an intimate confidante in a setting that does not
raise the same concerns as Lilly or Chapman. Further, Mr. Rush's statement
evidences none of the "pass the buck" worry that controlled the plurality in Lilly.
Instead, Mr. Rush took on the lion's share of responsibility. He explained that he was
going to burn down the building for Mr. Manfre. Thus, Ms. Van Gaalen's testimony
regarding Mr. Rush's statement about the blueprints was properly admitted.

                                          -12-
       The introduction of the letter left by Mr. Rush for Ms. Van Gaalen was also
proper. The letter discusses his remorse and fear that something might happen to him
in burning down the nightclub.2 The letter, however, does not mention Mr. Manfre
and thus raises no Lilly issues. It is relevant in that it demonstrates Mr. Rush's
anticipation of completing the conspiracy, and thus is admissible as a statement
against penal interest.




      2
          The letter reads:

               Dear Jessica,

               If this reaches you before I do . . . then things went bad! I
               want you to know I never wanted to do this! I had no
               choice! If I hadn't of done it . . . then I would not only
               have endangered myself . . . but you and the baby as well!
               I was never threatened physically but the innuendos where
               there! Huh . . . if I was single this would be cake walk . . .
               but I have a family to think about now! But if we are to
               ever be ok or you are able to be completely left alone by
               them. . . then I have no choice but to silence myself and
               you have to do the same. . . no questions asked! No
               answers given, not even if I ask you! Nothing! Otherwise
               we, or I . . . am in danger! I'm so scared for you only. . . as
               for myself. . . the fears are there. . .but that's only the fact
               I'll never be there to hold you ever again! Muchless our
               baby! I'm so sorry I . . . I'm sorry! Please let the baby be
               part of my family. . . They'll love you more then anyone!
               Goodbye angel!

               Thank you for loving me!

               Sincerely, love,
               David L. Rush

                                            -13-
                                          D.

       Lastly, Mr. Manfre objects to the admission of his friend Trevor Mills's
testimony. At trial, Mr. Mills testified that he and Mr. Rush had discussed Mr. Rush's
plans to burn down the nightclub. According to Mr. Mills, Mr. Rush told him that
Mr. Manfre had hired him to burn down the nightclub as part of an insurance scam.
Mr. Rush told Mr. Mills of the plan to use gasoline in the fire, his possession of the
blueprints, and the eventual plan to split the insurance proceeds. Mr. Rush sought out
these conversations with Mr. Mills, hoping to obtain guidance on whether he should
go through with the plan.

      Similar to our discussion of Ms. Van Gaalen's testimony, we believe this
testimony was properly admitted as a statement against penal interest. The statements
were not made in a setting where Mr. Rush had a major incentive to shift the blame
to Mr. Manfre, and they were against Mr. Rush's penal interest at the time they were
made. Thus, we see no Confrontation Clause problems and hold that the evidence was
properly admitted.

                                         III.

      On appeal, Mr. Manfre also requests that we review certain documents placed
under seal by the District Court to determine if he was entitled to any of the material
under the Jencks Act or under Brady v. Maryland, 373 U.S. 83 (1963). In particular,
Mr. Manfre asked us to review the documents "for anything which would impeach
four witnesses – Buttler, Strozier, Van Gaalen or Mills – or material which would
have pointed toward culpability of the [nightclub] co-owner John Moore and tending
to exonerate [him]." Opening Brief of Appellee at 66. After a review of the
documents, we have found no material that tended to exonerate Mr. Manfre.




                                         -14-
       Our review for Jencks material was made significantly harder by Mr. Manfre's
failure to tell us what he had previously received from the government. While there
were some signed statements of witnesses in the file which would qualify as Jencks
material under 18 U.S.C. § 3500(e), we were unable to tell whether those statements
had been disclosed. According to the government (not controverted by the
defendant), the statement of Mr. Strozier, the only qualifying material we found of
one of the four witnesses Mr. Manfre noted, had been disclosed. The rest of the
statements were from minor witnesses and were consistent with the trial testimony
they gave. We are unsure whether they were disclosed. However, to the extent that
they were not disclosed, there was no prejudice to the defendant, and we find no bad
faith on the part of the government. United States v. Douglas, 964 F.2d 738, 741-42
(8th Cir. 1992).

                                        IV.

      Both Mr. Manfre and the government appeal from the sentence imposed. Mr.
Manfre argues that he should have received a downward departure under United
States Sentencing Guidelines § 5K2.10. The government argues that the District
Court began with the wrong base-offense level and that it erred in not imposing an
obstruction-of-justice enhancement. Purely for organizational convenience, we
address the government's appeal first.

                                        A.

      In calculating Mr. Manfre's sentence on the arson charge, the District Court
began with § 2K1.4 of the United States Sentencing Guidelines. Section 2K1.4(c)(1)
provides:

            If death resulted, or the offense was intended to cause death or
            serious bodily injury, apply the most analogous guideline from

                                       -15-
             Chapter Two, Part A (Offenses Against the Person) if the
             resulting offense level is greater than that determined above.


Cross-referencing and applying our decision in United States v. Ryan, 9 F.3d 660,
671-72 (8th Cir. 1993), the District Court determined that § 2A1.1, First Degree
Murder, was the most "analogous guideline." The dispute on appeal concerns the
downward departure the District Court granted from the First Degree Murder base-
offense level of 43 to 33 – the same base-offense level as § 2A1.2, Second Degree
Murder. The government supported a departure from 43 to 38 but objected to any
lower departure. The argument is renewed here.

       "Under the PROTECT Act, we review de novo the application of the guidelines
to the facts and review the district court's factual findings for clear error." United
States v. Willey, 350 F.3d 736, 738 (8th Cir. 2003) (internal citations omitted). We
affirm.

      In relevant part, Note One of the Commentary to § 2A1.1 provides:

                    [i]f the defendant did not cause the death
             intentionally or knowingly, a downward departure may be
             warranted. The extent of the departure should be based
             upon the defendant's state of mind (e.g., recklessness or
             negligence), the degree of risk inherent in the conduct, and
             the nature of the underlying offense conduct. However, the
             Commission does not envision that departure below that
             specified in § 2A1.2 (Second Degree Murder) is likely to
             be appropriate.


At the sentencing hearing, the District Court explained that it had "rel[ied] upon the
fact that . . . [it] did not believe [Mr. Rush's] death was intentionally or knowingly


                                        -16-
caused by [Mr. Manfre]. [Mr. Manfre's] state of mind was such that I don't think he
intended that to happen." Sentencing Tr. 22. We believe that these factual findings
by the District Court were not clearly erroneous, and thus the departure was
warranted.

       The Commentary gives broad discretion to the District Court to determine the
extent of the departure between first-degree murder and second-degree murder, and
as long as the District Court finds sufficient facts we will not disturb the departure
despite our de novo review. The District Court's application of the Guidelines in this
case was based both on facts it explicitly found and on facts it impliedly found as the
presider and participant in Mr. Manfre's trial. The ten-level departure connotes the
District Court's belief that Mr. Manfre's responsibility for Mr. Rush's death was
peripheral, that this was a botched insurance scam with a tragic result – both of which
are factual findings. We agree, after a de novo review of the application of these facts
to § 2A1.1 of the Guidelines, that a ten-level departure was warranted in this case.

                                          B.

       We turn now to the government's second issue. It argues that the District Court
erred in not imposing a two-level enhancement for obstruction of justice under
§ 3C1.1. The government asserts that Mr. Manfre made false or inconsistent
statements to law enforcement officials concerning: (a) the monitoring of the
nightclub security system, (b) Mr. Manfre's relationship with Mr. Rush, (c) why Mr.
Rush had copies of the blueprints for the nightclub, (d) whether there were gas cans
in Mr. Manfre's truck the evening of April 23, and (e) Mr. Manfre's assertion to
investigators that he was current on his loan payments for the nightclub.

      Recently, our Court reaffirmed its position that "once the district court has
found the facts that trigger application of the [obstruction-of-justice] adjustment, the
court must apply the adjustment." United States v. Bush, 352 F.3d 1177, 1185 (8th

                                         -17-
Cir. 2003), and see, e.g., Hall v. United States, 46 F.3d 855, 859 (8th Cir. 1995) ("If
Hall in fact threatened the witness, the Guidelines did not give the district court
discretion to refuse to take the threat into account in sentencing . . . the district court
had no choice but to impose the sentence enhancement that the Guidelines
mandate."). The Guidelines describe the conduct which gives rise to the enhancement
as the defendant's "obstruct[ion] or imped[ing], or attempt[ing] to obstruct or impede,
the administration of justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction." United States Sentencing Guidelines
§ 3C1.1.

      We believe the District Court found that Mr. Manfre had obstructed, or at least
attempted to obstruct, the investigation into the nightclub explosion, and thus was
obligated to impose the enhancement. In questioning the government at the
sentencing hearing, the District Court asked the government:

             THE COURT: How much trouble was that for the
             government to determine that he was 14 months behind or
             whatever?

             ANSWER: It wasn't hard for us to determine and my point
             is that obstruction doesn't have to be successful.

             THE COURT: Well, and it was not very successful in this
             case, was it? Looks like his efforts – his efforts at best can
             be, you know, described as not very good or not very
             successful.

Sentencing Tr. 31. The Court's line of questioning demonstrates its implied finding
that Mr. Manfre had attempted to obstruct the investigation into the explosion, but
that he was unsuccessful. This appears to have been the reason for the Court's
decision not to impose the enhancement. Since § 3C1.1 punishes attempt as well as
successful obstruction, the enhancement should have been given.

                                           -18-
                                          C.

       Finally, we turn now to Mr. Manfre's contention that he should have received
a downward departure under § 5K2.10, Victim's Conduct. The gist of Mr. Manfre's
argument is that because his sentence was determined by reference to homicide
guideline § 2A1.1, he should have been given a downward departure for Mr. Rush's
role in bringing about his own death. Section 5K2.10 provides, in pertinent part, that
"if the victim's wrongful conduct contributed significantly to provoking the offense
behavior, the court may reduce the sentence below the guideline range to reflect the
nature and circumstance of the offense." The issue on appeal is whether Mr. Rush
was, in fact, a "victim." Mr. Manfre contends that he was; the District Court held that
he was not.

       Mr. Manfre argues that United States v. Drapeau, 188 F.3d 987 (8th Cir. 1999),
supports his position. In Drapeau, we held under a different Guideline that a police
officer was a "victim" of the defendant's crime, unlawfully making and possessing a
firearm, when the defendant had made firebombs for the express purpose of "getting"
the officer. Id. at 990-91. We reasoned that "[t]he aim or purpose of making the
firebomb. . . was to 'get' [the officer]. Thus, within the plain and ordinary meaning
of the term 'victim,' the person who is the object[, or purpose of,] [the defendant's]
crime of unlawfully making a firearm is [the officer]." Id. at 991 (internal quotations
omitted). Applying that same reasoning to our case, we look to what the charged
offense was, and whether Mr. Rush was the target of that offense to determine
whether he was a "victim." We believe that the District Court correctly denied the
downward departure.

      Mr. Manfre was convicted of arson. The target of that offense was the
insurance company from whom he hoped to collect on a fraudulent claim. Mr. Rush
was not a victim; he was a coconspirator who tragically died in the process of
completing the crime. Mr. Manfre's argument that he must get the downward

                                         -19-
departure because he was charged under a homicide guideline is simply incorrect.
Mr. Manfre was sentenced under § 2K1.4, Arson. The fact that the guideline directs
the sentencing court to apply the most analogous guideline from "Chapter Two, Part
A (Offenses Against the Person)" does not change the fact that Mr. Manfre was
punished for arson, and that the "victim" is determined by looking to the target of the
arson, not the cross-referenced guideline. United States Sentencing Guideline
§ 2K1.4(c)(1).

                                          V.

       In sum, we affirm. Mr. Manfre's evidentiary objections were, for the most part,
correctly overruled at trial. The few evidentiary errors that were made were harmless.
Mr. Manfre's appeal from the denial of a downward departure under § 5K2.10 is
without merit. The government's cross-appeal from the District Court's determination
of the base offense level is without merit. The government's challenge to the District
Court's failure to impose the obstruction-of-justice enhancement is upheld. The
sentence is vacated, and the case remanded to the District Court for resentencing
consistent with this opinion.
                         ______________________________




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