                                _____________

                                 No. 95-1802
                                _____________

United States of America,             *
                                      *
           Plaintiff-Appellee,        *     Appeal from the United States
                                      *     District Court for the
     v.                               *     District of Minnesota.
                                      *
Gregory Lee Melina,                   *
                                      *
           Defendant-Appellant.       *



                                _____________

                         Submitted:   June 12, 1996

                            Filed: November 29, 1996
                                 _____________

Before LOKEN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.


     Gregory Melina appeals from the final judgment entered by the
district court1 upon his conviction of aiding and abetting arson.       He
claims that (1) the district court erred by failing to sever his case from
a nontestifying codefendant's, (2) the district court erroneously excluded
evidence that would have shown that a third party was responsible for the
fires, (3) the government failed to show any connection between the
building that was burned and interstate commerce, and (4) the evidence was
insufficient to sustain his conviction.    We affirm.




     1
      The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota.
                                          I.


     This case arises out of two deliberately set fires that destroyed
Eddy's Hamburger and Malt Shop (Eddy's), located in Long Lake, Minnesota,
and owned and operated by John Charles Flaherty.                  The fires occurred
approximately two weeks apart, the first on December 31, 1988, and the
second on January 12, 1989.     Flaherty and appellant Melina were charged in
connection with the fires in a three-count indictment.                  The first two
counts charged the defendants pursuant to 18 U.S.C. § 844(i) and § 2 with
aiding and abetting each other in malicious damage and destruction and
attempted damage and destruction of a building being used in interstate
commerce.    Each of the two aiding and abetting counts represented one of
the fires.   The defendants were also charged with a conspiracy count under
18 U.S.C. § 371.


     Melina    and   Flaherty   pleaded    not    guilty    to   the   charges   in   the
indictment, and the case proceeded to trial.               At the conclusion of the
evidence, the district court dismissed the conspiracy count on the basis
of insufficient evidence.       Flaherty was found guilty of both aiding and
abetting counts, but Melina was found guilty of only the second count,
which concerned the January 12 fire.            A more complete recitation of the
facts and the circumstances surrounding the arsons can be found in this
court's opinion affirming Flaherty's conviction on direct appeal.                     See
United States v. Flaherty, 76 F.3d 967, 969-70 (8th Cir. 1996).


                                          II.
                                          A.


     Melina contends that the district court erred in failing to sever his
trial from Flaherty's.      Melina first argues that the district court's
failure to sever his trial violated the Bruton rule because, even though
Flaherty did not testify, the court




                                      -2-
admitted out-of-court statements made by him that implicated Melina in the
crime.   See Bruton v. United States, 391 U.S. 123 (1968).


     In Bruton, the Supreme Court held that in a trial where two or more
defendants    are    tried    jointly,   the   admission    of   a   nontestifying
codefendant's confession that expressly implicates the defendant violates
the defendant's Sixth Amendment confrontation rights, even if the district
court gave the jury limiting instructions to consider the confession only
against the codefendant who confessed.            Id. at 126; United States v.
Escobar, 50 F.3d 1414, 1422 (8th Cir. 1995) (applying Bruton).           However,
"[i]f a codefendant's confession does not incriminate the defendant on its
face, but does so only when linked to additional evidence, it may be
admitted if a limiting instruction is given to the jury and the defendant's
name is redacted from the confession."         Flaherty, 76 F.3d at 972 (citing
Richardson v. Marsh, 481 U.S. 200, 211 (1987)).         Furthermore, Bruton does
not apply at all when a codefendant's statements do not incriminate the
defendant either on their face or when considered with other evidence.
Escobar, 50 F.3d at 1422.


     In the instant case, Melina points to three out-of-court statements
made by codefendant Flaherty that serve as the basis for his Bruton
argument.    The first was Flaherty's denial that he had contact with Melina
during the time frame when the arsons occurred; this statement was made in
a deposition in a civil case in which Flaherty was seeking to recover
insurance    benefits   for   the   destruction   of   Eddy's.   The   second   was
Flaherty's statement to law enforcement officers concerning the nature of
his relationship with Melina.        The third was Flaherty's statement to one
Liz Sorenson, shortly after the fires occurred, that he was             trying to
locate Melina.      The district court expressly instructed the jury that it
was to consider the out-of-court statements made by Flaherty and Melina
only with respect to the guilt of the individual who made the statements.
See Flaherty, 76 F.3d at 971 n.4.




                                         -3-
     We find no Bruton violation here.           The statements that Melina
challenges do not in any manner on their face inculpate Melina but, at
most, inculpate Melina when considered with other evidence received at
trial.       In fact, they do not refer to either the December 31 fire or the
January 12 fire on which Melina's conviction rested and do not refer to any
wrongdoing at all.      Assuming that Flaherty's statements are incriminating
when considered with other evidence received at trial, the district court's
limiting instructions effectively cured any risk of harm to Melina.       See
id. at 972.


     In any event, even if we were to conclude that the admission of
Flaherty's statements constituted a Bruton violation, such a conclusion
would not advance Melina's case, because the error in admitting the
statements was harmless.       See Flaherty, 76 F.3d at 972 (harmless error
analysis applicable to Bruton violations).     As we outline more fully below,
the evidence against Melina is overwhelming, even if these statements are
not considered.2



         2
       Similarly, we reject Melina's argument that the jury must
have used Flaherty's out-of-court statements as substantive
evidence against Melina because the two defendants were not linked
by any other evidence, and that accordingly, under Lee v. Illinois,
476 U.S. 530, 546 (1986), his conviction must be reversed. The Lee
Court held that where a fact finder relies in part on an
inadmissible confession in determining the defendant's guilt, the
conviction must be reversed. However, Lee is inapposite in this
case because Lee applies only in instances in which the
codefendant's statement inculpates the accused and, as we noted
above, Flaherty's statements did not inculpate Melina.

     We likewise reject Melina's claim, based on United States v.
Alonzo, 991 F.2d 1422, 1427 (8th Cir. 1993), that the circumstances
surrounding the admission of Flaherty's denials of contact with
Melina suggest that the jury "inevitably used" the statements as
substantive evidence against Melina. In Alonzo, we recognized that
a coconspirator's statements presented for the purpose of providing
background, see Fed. R. Evid. 801(c), but which also provide direct
evidence of a defendant's guilt, may so seriously prejudice the
defendant that a limiting instruction may not cure the problem.
Id. at n.5. The statements at issue here are of a quite different
nature than the one at issue in Alonzo, because Flaherty's

                                       -4-
      In addition to his Bruton claim, Melina also makes a general argument
that the district court should have severed his trial from Flaherty's.
Melina contends that severance was required when the district court
dismissed the conspiracy counts against him and Flaherty because, without
the conspiracy, the taint from the out-of-court statements of one defendant
had a spillover effect onto the other defendant.


      There is     "a clear preference `for joint trials of defendants who are
indicted together.'"     United States v. Shivers, 66 F.3d 938, 939 (8th Cir.)
(quoting Zafiro v. United States, 506 U.S. 534, 537 (1993)), cert. denied,
116 S. Ct. 581 (1995).          Further, individuals who are charged in an
indictment    as   coconspirators   should,   as   a   general   matter,    be   tried
together.    United States v. Koskela, 86 F.3d 122, 126 (8th Cir. 1996);
Shivers, 66 F.3d at 939.      Absent some showing of prejudice, it is of no
consequence that the conspiracy counts were dismissed by the district
court.   See Schaffer v. United States, 362 U.S. 511 (1960) (joinder of
seven defendants proper despite dismissal of conspiracy count at the
conclusion of the government's case).


      We review the district court's denial of a defendant's motion to
sever for an abuse of discretion.     United States v. Bordeaux, 84 F.3d 1544,
1547 (8th Cir. 1996).     To show that a district court's denial of a motion
to sever was an abuse of discretion, a defendant must demonstrate that the
district court's failure to sever the trials "resulted in severe or
compelling prejudice."     Koskela, 86 F.3d at 126.     This burden is satisfied
"when a defendant is deprived of an appreciable chance for an acquittal,
a   chance   that he would have had in a severed trial."                   Id.   More
specifically,




statements did not directly implicate Melina. We therefore
conclude that the district court's cautionary instructions
sufficiently cured any danger of prejudice.

                                       -5-
"[t]o show clear prejudice, a defendant must show that his defense was
irreconcilable with that of the codefendant or that the jury was unable to
compartmentalize the evidence."      Bordeaux, 84 F.3d at 1547.


     Melina has not demonstrated that the failure to sever his trial
denied him an appreciable opportunity for an acquittal.       Flaherty's and
Melina's defenses do not appear to be irreconcilable; on the contrary,
their defenses were quite consistent, because both defendants sought to
prove that a third party, a juvenile    described as T.E.H., was responsible
for the arsons.     Melina has also made no showing that the jury had
difficulty in compartmentalizing the evidence, and in fact, the jury's
verdict finding Flaherty guilty with regard to both fires and Melina guilty
only with respect to the January 12 fire is evidence of the jury's ability
to compartmentalize the evidence.    See Koskela, 86 F.3d at 126 (defendant's
acquittal on one count sufficient to rebut claim that jury was unable to
compartmentalize the evidence).     We conclude, as we did in Flaherty, that
the district court's limiting instructions were more than adequate to
alleviate any   risk of prejudice.     See Flaherty, 76 F.3d at 972.


     Accordingly, we reject Melina's contention that the district court
erred by failing to sever his trial from codefendant Flaherty's trial.


                                       B.


     Melina claims the district court erred by excluding evidence that
both Flaherty and Melina claimed tended to show that a third party was
responsible for the arson.   Specifically, Flaherty and Melina sought to
present evidence that juvenile T.E.H. was a potential suspect in setting
the fire that destroyed Flaherty's restaurant.    They suggested that T.E.H.,
who was a former Eddy's




                                      -6-
employee, had set a fire in Flaherty's son's school locker.       T.E.H. was
charged with arson in state court for the fire in Flaherty's son's locker,
but later pled guilty to one count of burglary in exchange for the arson
charge being dismissed.    At the close of the evidence in the present case,
Flaherty's counsel sought to introduce a copy of the dismissed state court
complaint charging T.E.H. with arson, obviously for the purpose of creating
the inference that T.E.H. may well have been responsible also for the fires
at Eddy's.    The district court denied admission of this evidence.   Although
Flaherty's counsel was the one who sought to introduce the documents,
Melina's counsel objected to the court's denial of the admission, and
therefore we will assume for the purposes of discussion that Melina has
adequately preserved this issue for our review.


     We review the district court's denial of the admission of this
evidence for an abuse of discretion.        Flaherty, 76 F.3d at 973.      In
Flaherty, over a dissent, we held that the district court did not abuse its
discretion by excluding this evidence under Federal Rule of Evidence 403.
Id. at 973.    Our ruling was based on the facts that "the probative value
of the proffered evidence was slight," only "a weak offer of proof" had
been made, and "the fires were not started in a similar manner."          Id.
Melina has provided no reason why we should reach a different conclusion
with respect to the identical issue and identical argument.     Accordingly,
we reach the same conclusion as we reached in Flaherty and hold that the
district court committed no abuse of discretion in excluding this evidence
under Federal Rule of Evidence 403.




                                     -7-
                                         C.


      Under 18 U.S.C. § 844(i), the government must establish that the
damaged property at issue was used in interstate commerce or in an activity
that affected interstate commerce.       Relying on United States v. Lopez, 115
S.   Ct.   1624    (1995),    Melina   argues    that   the   government   presented
insufficient evidence to establish the interstate commerce element of the
crime of arson under § 844(i).
      At trial, the parties in this case entered into a fact stipulation
stating that "Eddy's Malt Shoop [sic] and Restaurant was heated with, and
otherwise utilized natural gas furnished to it by Minnegasco, which natural
gas was purchased from sources outside of the State and District of
Minnesota."       (Gov't's Addend. at A - 7.)           Both defense counsel and
government counsel acknowledged that this stipulation was sufficient to
satisfy the interstate commerce element under this court's en banc holding
in United States v. Ryan, 41 F.3d 361 (8th Cir. 1994), cert. denied, 115
S. Ct. 1793 (1995).          The Ryan case was explicitly mentioned when the
parties were discussing this issue.            Melina did not object to the jury
instructions on the interstate commerce issue or challenge the sufficiency
of the government's proof on the interstate requirement in his motion for
judgment of acquittal.       Additionally, Flaherty's counsel stated that "there
is not an [interstate commerce] issue in this case . . . ," (Trial Tr. at
1003), and Melina's counsel tacitly agreed.


      We dealt with this precise issue in Flaherty and held that Flaherty's
similar stipulation, coupled with his failure to raise the issue of
interstate nexus either in his motion for judgment of acquittal or with
respect to the jury instructions, was a complete waiver of the issue.
Flaherty, 76 F.3d at 973.        Moreover, we noted that Flaherty fully agreed
with a jury instruction that stated that the interstate nexus could be
satisfied by way of gas used to heat




                                         -8-
the building which originated from out-of-state, and this instruction
mirrored the instruction we upheld in Ryan.        Id.   Because Flaherty's
stipulation of facts was binding on him, and such stipulation satisfied the
interstate burden articulated in Ryan, sufficient evidence was present to
satisfy the interstate commerce element of arson under 18 U.S.C. § 844(i).
Id.


      Melina's similar stipulation, considered with his failure to raise
the issue of interstate commerce at any juncture during trial, likewise
waived the issue for our review.    Additionally, the jury instruction, to
which it appears that Melina agreed and certainly did not object to,
satisfies Ryan.    Melina is bound by his stipulation of facts, and like
Flaherty's stipulation, this is sufficient to meet the interstate commerce
burden we described in Ryan.   While Flaherty does not necessarily dictate
the outcome with respect to this issue, again Melina has not demonstrated
why we should reach a disparate result with respect to an identical issue.
Having stipulated to facts that satisfy Ryan, explicitly discussing Ryan
by name when the interstate commerce issue was being discussed and agreeing
that the stipulation meets Ryan, and tacitly agreeing with Flaherty's
counsel's statement that "there is not an [interstate commerce] issue in
this case . . ." (Trial Tr. at 1003), Melina cannot now be heard to
complain that insufficient evidence exists to satisfy the interstate
commerce element under § 844(i).3


      Even if Melina had not waived this issue, his argument fails on the
merits.    He relies on Lopez, arguing the government was required to show
a substantial connection between the natural gas




       3
       Melina seems to admit as much, stating in his brief that
"[s]ince the government agreed to a stipulation there are no
adverse inferences which the Court can draw and, therefore, the
Court is bound to follow what the parties have stipulated."
(Melina's Br. at 10.)

                                    -9-
used to heat the building in which Eddy's was located and interstate
commerce.    Melina contends that the natural gas does not substantially
affect interstate commerce and thus fails to satisfy the interstate
commerce requirement under § 844(i).


     Again, we rejected this precise argument in Flaherty, holding that
Lopez was simply inapplicable.    Flaherty, 76 F.3d at 973.   There we held
that, unlike the Gun-Free School Act (18 U.S.C. § 922(q)) struck down in
Lopez, the arson statute at issue contains an explicit jurisdictional
requirement that the affected property be "used in interstate or foreign
commerce."    76 F.3d at 974 (internal quotations omitted).     Because the
statute assailed in Lopez did not contain a similar jurisdictional element,
and because the Lopez Court did not discuss the quantity of evidence
necessary to satisfy such an explicit jurisdictional element, Lopez by its
terms was inapposite.    Id.   See also United States v. McMasters, 90 F.3d
1394, 1397-99 (8th Cir. 1996) (rejecting a facial challenge to § 844(i)
under Lopez because § 844(i) has express jurisdictional requirement;
rejecting an "as applied" claim because the property at issue was rental
property and Supreme Court had previously held that rental property affects
interstate commerce).


     We decline to depart from Flaherty's holding on this issue simply
because, again, we do not find Lopez's analysis applicable due to the
§ 844(i)'s express jurisdictional element.      In sum, we reject Melina's
argument that Lopez requires that his conviction be reversed because the
government failed to establish a substantial connection with interstate
commerce in this case.   It follows that we also reject his broader argument
that there was insufficient evidence to prove the interstate requirement
for the offense of arson under 18 U.S.C. § 844(i).




                                    -10-
                                     D.


     Melina finally contends that insufficient evidence exists to sustain
his conviction for aiding and abetting arson.   In evaluating his claim, we
review the evidence in the light most favorable to the verdict, granting
it every reasonable inference that can be drawn from the evidence.   United
States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995).    We will reverse
"only if we conclude that a reasonable fact finder must have entertained
a reasonable doubt about the government's proof of one of the offense's
essential elements."    United States v. Jenkins, 78 F.3d 1283, 1287 (8th
Cir. 1996).   Having reviewed the record in the light most favorable to the
verdict, we conclude that the government presented sufficient evidence to
support Melina's conviction under 18 U.S.C. § 844(i) and § 2 in connection
with the January 12 fire.


     Melina and Flaherty had known each other since the early 1980s.
Although both denied having contact with each other during the time of the
incident, Melina stated in a deposition in Flaherty's civil case that the
last time he had seen Flaherty, Flaherty was driving a white Cadillac.
When combined with Flaherty's wife's testimony that the only white Cadillac
the family had owned they possessed between September of 1988 and March of
1989, an inference can be drawn that Flaherty and Melina were in contact
with each other during the time period that the fires occurred.   Thus, the
jury could reasonably have inferred that Melina and Flaherty had falsely
denied having contact during the time period of the fires.


     At some point after the fires, one Heather Westegaard, who was the
sister of an unindicted coconspirator, asked Melina about his connection
to "Johnny," which happened to be Flaherty's nickname.      Melina erupted
violently and began screaming obscenities and




                                   -11-
threats at Westegaard, informing her in very specific terms that physical
harm would befall her and her boyfriend if she continued to inquire into
the matter.     Given Melina's violent response to Westegaard's innocuous
question, a jury could reasonably have concluded that Melina had a guilty
conscience and was seeking to distance himself from Flaherty after the
fire.


        Physical evidence also linked Melina to the fire.   A blackboard was
seized from Melina's residence a couple of years after the fire.   Although
the blackboard did not possess markings that were discernible to the naked
eye, the use of laser technology revealed a diagram of the layout of Eddy's
restaurant, along with local landmarks close to Eddy's restaurant.   Melina
admitted that he drew the diagram but insisted to law enforcement officers
that    the diagram was not Eddy's restaurant; he claimed the diagram
represented instead a local bank that he and a third party had intended to
rob.      The diagram was drawn with such detail matching that of the
restaurant and local landmarks, however, that the jury could easily have
concluded it was in fact a representation of the restaurant and that
someone with intimate knowledge of both the restaurant and the general area
had to have assisted in making the diagram.         The evidence at trial
indicated that Flaherty was the only individual who knew Melina and who
also knew the specifications of the restaurant displayed in the diagram.
This evidence suggests the reasonable inference that Flaherty and Melina
drew the diagram and discussed the arson.


        Finally, a search warrant executed at Melina's house uncovered
containers of gasoline and fuel oil, which can be used as accelerants for
a fire.    The government presented testimony that similar accelerants were
used in connection with the January 12 fire.   While gasoline and fuel oil
are substances that are possessed by many members of society, Melina's
possession of these substances, and the fact that similar accelerants were
used in the




                                    -12-
January 12 arson, is simply some additional evidence a reasonable jury
could have considered in determining Melina's guilt.


     After reviewing all of the evidence in the light most favorable to
the verdict, we conclude that the government presented sufficient evidence
to sustain Melina's conviction.   Put another way, a reasonable fact finder
could have concluded Melina's guilt of the January 12 arson beyond a
reasonable doubt.    Accordingly, we reject Melina's argument that the
evidence was insufficient to sustain his conviction.


                                    III.


     For the reasons outlined above, we affirm the judgment of the
district court.


JOHN R. GIBSON, Circuit Judge, dissenting.


     I respectfully dissent from Part IIB of the court's opinion today.



     I believe that the court errs in refusing to allow evidence tending
to show that a third party was responsible for the arson.    I articulated
my reasons fully in my dissent in United States v. Flaherty, 76 F.3d 967,
974-75 (8th Cir. 1996).      In my view, the district court abused its
discretion in rejecting the evidence under Rule 404(b), and did not base
its reasoning on Rule 403.   The exclusion of the evidence was prejudicial
error.


     A true copy.


           Attest:


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




                                    -13-
