                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 08-3161
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Steven Sandstrom,                      *
                                       *
            Appellant.                 *

      ___________
                                           Appeals from the United States
      No. 08-3164                          District Court for the
      ___________                          Western District of Missouri.

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

                             Submitted: September 22, 2009
                                 Filed: January 29, 2010
                                 ___________

Before BYE, SMITH, and COLLOTON, Circuit Judges.
                            ___________
SMITH, Circuit Judge.

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

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




      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

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

      For the reasons set forth below, we affirm.

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

      After Sandstrom arrived at Chrisp's house, he informed Eye and Rios that "he
just shot a n****r at 7-Eleven." Sandstrom appeared "frantic" and "intense."
Sandstrom, Eye, and Rios then went to Sandstrom's house, where Sandstrom told his
mother that he had "just shot a n****r." They then went to Sandstrom's room and


      2
        When they first left the location, Sandstrom was driving the Intrepid with Rios
as his passenger. At some point, Rios changed vehicles and got into the Jeep with Eye.

                                           -3-
smoked methamphetamine. Eye subsequently received a phone call from Vincent
Deleon, and the three left Sandstrom's house in the Intrepid to go pick up Deleon at
Chrisp's house. Sandstrom brought a gun with him.

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

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

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

      When the three arrived at the gas station, Chrisp got in the car and asked to be
taken to her home. Eye said that was a good idea because, if she stayed with them,
"she would probably see something she didn't want to see." Sandstrom then asked
Chrisp whether she had seen anything on the news about the shooting in front of the

                                         -4-
7-Eleven and told her that he had "shot at some n****r." He also told Chrisp that she
was "about to witness a homicide." Chrisp again asked to be taken to her home.

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

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

       After shooting at McCay, Eye told Sandstrom to drive around the block, and
Sandstrom went left on Spruce Avenue and came back out on Kensington Avenue.
When they got back to 9th Street, Eye did not see McCay. Eye "started freaking out"
and became "frantic." Eye was "tripping" and could not understand how McCay was
no longer there; he wanted to go find McCay. Sandstrom told Eye that he was
"tripping and doing too much." Sandstrom then looked at Rios, and Rios told
Sandstrom to go back and find McCay because McCay "was a case that we would
probably catch." Rios meant that McCay was a witness that could implicate them in
the shooting. Sandstrom then went down 9th Street until Eye told him to turn on Van
Brunt Boulevard. Sandstrom turned on Van Brunt Boulevard, on 8th Street, and then
on Brighton Avenue. He followed all of Eye's directions. Once on Brighton Avenue,
Eye instructed Sandstrom to pull the car over, and Sandstrom complied. Rios saw

                                         -5-
McCay again at 9th Street and Brighton Avenue. Eye got out of the car and walked
toward McCay with the gun in the pocket of his sweatshirt. Eye met McCay in the
middle of 9th Street and began to struggle with him. Eye pulled the gun and fired at
McCay. McCay stumbled to the other side of the street and collapsed. Rios reported
hearing one or two shots fired. McCay died from a single, .22 caliber gunshot wound
to the chest. A 911 call at 6:12 a.m. reported hearing shots fired at the location.

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

       When they arrived at their friend's house, they heard a news report that three
black males were suspected in the homicide at 9th Street and Brighton Avenue.
Sandstrom and Eye laughed. Sandstrom declared "that's my car" when the news
reported on the burning Intrepid. Deleon and Eye went outside, where Eye told Deleon
that he "did that s**t" and "smoked that n****r." Sandstrom came outside, laughing,
and said "yep," which Deleon understood as Sandstrom confirming what Eye had said.

       Sandstrom, Eye, Rios, and Deleon left the friend's house in the Jeep. During the
drive, Deleon asked Sandstrom, Eye, and Rios what they had been doing. Eye replied
that he had "killed a n****r on 9th Street." And, Sandstrom told Deleon that he had
"just burnt the Intrepid under the bridge." The four drove past the intersection of 9th
Street and Brighton Avenue where emergency vehicles and news vans were present.

                                         -6-
When Deleon asked what was going on, Eye bragged, "Did you think this was a
game? I told you, I killed some n****r." Then, Sandstrom said, "That's where [Eye]
shot that n****r." Eye started laughing and said, "[H]ere, n****r, n****r, n****r."

       The four returned to Chrisp's house and turned on the news, which was
reporting on the car fire. Sandstrom declared that it was "a waste of a perfectly good
car." Chrisp testified that she overhead bits and pieces of their conversation, including
someone saying, "I got that one off, you got that one off." Sandstrom, Eye, Rios, and
Deleon then split up, with Deleon and Eye going to one location, and Sandstrom and
Rios going to another. Eye told Deleon that he and Sandstrom had been playing a
game called "n****r, n****r, n****r." Deleon described the game as "kill[ing] black
people."

       A few days after the shooting, Sandstrom, Eye, Rios, Sandstrom's girlfriend,
Kristina Chirino, and a few others were in Chirino's basement. Eye bragged to the
group that he killed a "n****r." Eye expressed disbelief to the group that McCay was
not at the intersection at 9th Street and Spruce Avenue after the first shooting and
explained that he shot McCay because McCay was in "my hood on my time." Rios
explained that she told Sandstrom to turn the car around and "finish [McCay] off"
because Eye had already shot him once. She also said, referring to the earlier shooting
that Sandstrom claimed to have committed at 7-Eleven, that "if [Sandstrom] had better
aim there would be two dead n*****s instead of one."

       About a week later, the police came to Chirino's house to arrest Sandstrom.
Before the police entered the house, Sandstrom hid a gun in the closet. Sandstrom's
sister eventually retrieved the gun and threw it into the river. The police later
recovered a .22 revolver from the river.

      In late July 2005, while in custody, Sandstrom wrote a letter to one of Rios's
friends. In it, Sandstrom wrote that "that b***h [Rios] better be out my hood when I

                                          -7-
get out." Sandstrom also wrote, "[Rios] knows as much as you do I'm a killer" and that
he would "beat [Rios's] a**" when he saw her.

      A federal grand jury returned a nine-count superseding indictment against
Sandstrom and Eye. After trial, the jury found Eye guilty on Counts 1–8 and
Sandstrom guilty of Counts 3–9. The jury acquitted Sandstrom on Counts 1 and 2.
Thereafter, the district court sentenced Eye and Sandstrom to life imprisonment.

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

                                  A. Motion To Sever
      Both Sandstrom and Eye assert that the district court abused its discretion in
denying their motions to sever based on mutually antagonistic defenses. In addition,
Eye contends that the district court abused its discretion in denying his motion to sever
based on a Confrontation Clause violation.

       "We will not reverse a denial of a motion to sever unless the appellant
demonstrates an abuse of discretion resulting in clear prejudice." United States v.
Lewis, 557 F.3d 601, 609 (8th Cir. 2009) (internal quotations and citation omitted).

                                           -8-
                         1. Mutually Antagonistic Defenses
       Sandstrom contends that his defense and Eye's defense were mutually
antagonistic and irreconcilable. Sandstrom's defense contended that Eye shot McCay
and that Sandstrom did not know that Eye was going to kill McCay. Sandstrom
asserted that he had no intent to kill McCay or assist Eye in doing so and did not act
with a racial motive. Sandstrom represents Eye's defense as completely contradictory
because Eye contends that Sandstrom—not Eye—shot McCay at 9th Street and
Brighton Avenue. According to Eye, no one fired a shot at 9th Street and Spruce
Avenue. Eye accused Sandstrom of shooting McCay while Eye fought McCay at 9th
Street and Brighton Avenue. Sandstrom maintains that if the jury believed the core of
Eye's defense—Sandstrom was the shooter—then it would be impossible for the jury
to acquit Sandstrom on Counts 3–6. Sandstrom avers that the jury had to reject
Sandstrom's defense to accept Eye's defense.

       Eye also argues that his defense and Sandstrom's defense were mutually
antagonistic and irreconcilable. According to Eye, his defense was that (1) the first
shooting at 9th Street and Spruce Avenue never occurred and was a fabrication by
Rios; (2) finding McCay at 9th Street and Brighton Avenue was a chance encounter;
and (3) Eye got in a fight with McCay in the middle of the street and either Rios or
Sandstrom shot McCay without warning at 9th Street and Brighton Avenue. Eye
characterizes Sandstrom's defense as arguing that Eye fired at McCay at 9th Street and
Spruce Avenue without Sandstrom's knowledge and that Eye shot McCay at 9th Street
and Brighton Avenue to keep McCay from testifying.

       The government responds to both defendants' arguments by maintaining that
the district court did not abuse its discretion in denying defendants' motions to sever
based on mutually antagonistic defenses. First, the government argues that defendants
failed to establish that the defenses that they presented at trial were truly mutually
antagonistic. In support of this argument, the government contends that the "core" of

                                         -9-
Sandstrom's defense was that he is not a racist and that, regardless of how many
shootings occurred or who the victim was, he was unaware that the shootings were
going to occur. The "core" of Eye's defense was that he is not a racist and that,
regardless of how many shootings occurred, he was not the shooter. The government
thus argues that Sandstrom denied prior knowledge of the shootings, whereas Eye
denied participation in the shootings, and both denied being motivated by race. As a
result, according to the government, neither the core of Sandstrom's defense nor the
core of Eye's defense was that the other defendant was the shooter or that the other
defendant was motivated by race. Consequently, a jury could believe that Sandstrom
did not have prior knowledge of the shootings without necessarily having to find Eye
guilty. Likewise, a jury could believe that Eye was not the shooter without necessarily
finding Sandstrom guilty. And, the jury could have believed the core of both defenses
if it either believed the shootings were not motivated by race or concluded that Rios
was the shooter.

       Second, the government argues that, even assuming the defenses were mutually
antagonistic and irreconcilable, defendants have failed to show that any conflict
between their defenses was the only basis for the jury's verdict, meaning severance
was not warranted. According to the government, the basis for the jury's verdict was
not a conflict between defendants' respective defenses but instead a conflict between
their defenses and the government's evidence, including the testimony of Rios, who
witnessed the crimes charged.

      Third, the government maintains that, even if severance was warranted,
defendants have failed to show prejudice resulting from their joint trial, as the
witnesses' testimony would have remained the same even if they were tried separately.
Therefore, they cannot show that they would have fared better in separate
proceedings. Additionally, the government cites the Supreme Court and this court's
recognition that the risk of prejudice from a joint trial is best resolved through jury



                                         -10-
instructions and avers that the district court provided sufficient instructions to deal
with any prejudice resulting from the joint trial.

       "It is entirely proper to charge two or more defendants together 'if they are
alleged to have participated in the same act or transaction or in the same series of acts
or transactions constituting an offense or offenses.'" United States v. Bostic, 713 F.2d
401, 402 (8th Cir. 1983) (quoting Fed. R. Crim. P. 8(b)). "This case meets that
standard, and no one contends otherwise, so there is no issue of misjoinder in violation
of Rule 8. The claim is, instead, that the joinder was prejudicial, and that the District
Court should have granted a severance under Fed. R. Crim. P. 14." Id. Rule 14(a)
provides that

      [i]f the joinder of offenses or defendants in an indictment, an
      information, or a consolidation for trial appears to prejudice a defendant
      or the government, the court may order separate trials of counts, sever
      the defendants' trials, or provide any other relief that justice requires.

        "Severance will be allowed upon a showing of real prejudice to an individual
defendant." Id. at 403 (internal quotations and citation omitted). Whether to grant a
motion to sever is left "to the discretion of the trial court, and a denial of severance is
not grounds for reversal unless clear prejudice and an abuse of discretion are shown."
Id. (internal quotations and citation omitted). "Prejudice must be 'real' and 'clear,'" and
"[a]n abuse of discretion in refusing severance is not alone enough to justify reversal
and a new trial." Id. Instead, the defendant must show prejudice—that there was
"some appreciable chance that defendants would not have been convicted had the
separate trial they wanted been granted." Id. That is, the defendant must show
"something more than the mere fact that his chances for acquittal would have been
better had he been tried separately. He must affirmatively demonstrate that the joint
trial prejudiced his right to a fair trial." United States v. Wint, 974 F.2d 961, 966 (8th
Cir. 1992) (internal quotations and citation omitted). "A defendant can show real
prejudice either by showing that his defense is irreconcilable with the defense of his

                                           -11-
codefendant . . . or that the jury will be unable to compartmentalize the evidence as
it relates to separate defendants." United States v. Shivers, 66 F.3d 938, 940 (8th Cir.
1995) (internal quotations, alteration, and citation omitted). "The defendant carries a
heavy burden in making this showing." United States v. Swinney, 970 F.2d 494, 500
(8th Cir. 1992).

       "'Antagonistic' defenses require severance only when there is a danger that the
jury will unjustifiably infer that this conflict alone demonstrates that both are guilty."
United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996) (internal quotations and
citation omitted). In Zafiro v. United States, the Supreme Court considered "whether
Rule 14 requires severance as a matter of law when codefendants present 'mutually
antagonistic defenses.'" 506 U.S. 534, 535 (1993). The Court rejected the petitioners'
argument that it adopt a bright-line rule "mandating severance whenever codefendants
have conflicting defenses." Id. at 538. "Mutually antagonistic defenses are not
prejudicial per se. Moreover, Rule 14 does not require severance even if prejudice is
shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district
court's sound discretion." Id. at 538–39. According to the Court, the only time a
district court should grant a severance is "if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence." Id. at 539. "Such a risk
might occur when evidence that the jury should not consider against a defendant and
that would not be admissible if a defendant were tried alone is admitted against a
codefendant." Id. The Court recognized that "[t]he risk of prejudice will vary with the
facts in each case." Id. And it also noted that "[w]hen the risk of prejudice is high, a
district court is more likely to determine that separate trials are necessary, but . . . less
drastic measures, such as limiting instructions, often will suffice to cure any risk of
prejudice." Id.

       In Zafiro, the defendants also argued that, where defendants accuse one another
of the crime alleged against them, the jury may conclude "that at least one of the two

                                            -12-
must be guilty without regard to whether the Government has proved its case beyond
a reasonable doubt." Id. at 540. As to this argument, the Court concluded that such a
scenario did not occur in the case before it, as the "[t]he Government argued that all
four petitioners were guilty and offered sufficient evidence as to all four petitioners;
the jury in turn found all four petitioners guilty of various offenses." Id.; see also
United States v. Mason, 982 F.2d 325, 328 (8th Cir. 1993) ("Even assuming we
conclude a severance would have been appropriate for any of the reasons given by
Mason . . . reversal is not required . . . [because] [t]here has been no showing . . . that
the denial of severance affected the jury verdict against Mason in light of the
overwhelming evidence of his guilt."); Bostic, 713 F.2d at 402 ("We have studied the
entire record and are morally certain that the denial of severance did not affect the jury
verdict against appellants. It is not that Green's testimony was unimpressive. At least
one juror seems to have believed him, because the jury could not agree on a verdict
as to Green . . . .The dispositive point for us is the overwhelming strength of the
government's evidence, wholly apart from Green's testimony.").

        Additionally, the Court pointed out that even if a risk of prejudice existed, "it
is of the type that can be cured with proper instructions, and juries are presumed to
follow their instructions." Zafiro, 506 U.S. at 540 (internal quotations and citation
omitted).

       Here, even if we concluded that Sandstrom's and Eye's defenses were mutually
antagonistic and irreconcilable, severance is not required because "this conflict alone"
will not cause the jury to "unjustifiably infer" "that both are guilty." See Delpit, 94
F.3d at 1143. As in Zafiro, the government offered sufficient evidence independent
of any alleged conflict between Sandstrom's and Eye's defenses as to their guilt. In
response to Sandstrom's defense that he did not know that a shooting was going to
take place, the government presented Chrisp's testimony that Sandstrom held up a gun
and told Chrisp that she was "about to witness a homicide." Deleon also testified that
Sandstrom told him that he could "kill a n****r quick." And, according to the

                                           -13-
testimony of Rios—who was present when the crimes occurred—Eye told Sandstrom,
"if you get to do one, I get to do one" and that when he saw an African-American, it
would be "on site." Rios also testified that Sandstrom gave Eye the gun, without
hesitating, after Eye and Rios spotted McCay walking alone and that it was obvious
what Eye was going to do with the gun. She also stated that, after the first shooting at
9th Street and Spruce Avenue, Sandstrom, Eye, and Rios decided to find McCay, and
Sandstrom drove around looking for McCay after the first shooting. Sandstrom also
pulled the car over to let Eye out after they found McCay at 9th Street and Brighton
Avenue.

       Additionally, Rios's testimony contradicted Eye's defense that only one
shooting occurred (at 9th Street and Brighton Avenue) and that he was not the shooter.
Rios testified that Eye shot McCay at 9th Street and Spruce Avenue and that Eye shot
and killed McCay at 9th Street and Brighton Avenue. Rios's testimony was
corroborated by other government witnesses who testified that Eye admitted to
shooting McCay and that Sandstrom confirmed it.

       Accordingly, we find that it was the government's evidence—not any perceived
conflict between Sandstrom's and Eye's defense theories—that was the basis for the
jury's verdicts.

      Moreover, just as in Zafiro, the district court adequately addressed any risk of
prejudice by properly instructing the jury. The district court instructed the jury that it
was "to decide from the evidence whether each defendant is guilty or not guilty of the
crimes charged" and that it was to consider certain evidence "only in the case against
[Sandstrom], and not in the case against" Eye. Prior to deliberations, the district court
reminded the jury that it must "[k]eep in mind that [it] must give separate
consideration to the evidence about each individual defendant" and that "[e]ach
defendant is entitled to be treated separately, and [the jury] must return a verdict for



                                          -14-
each defendant." The district court also informed the jury that counsels' statements and
arguments were not evidence.

      Therefore, we hold that the district court did not abuse its discretion in denying
the motions to sever on the basis of mutually antagonistic defenses.

                              2. Alleged Bruton Violation
      During trial, the district court permitted Detective Matthew Williams and
Detective Robert Blehm of the Kansas City, Missouri Police Department to read
statements obtained from Sandstrom into the record. Prior to their testimony, the
government had provided the district court and Eye with redacted statements. Eye
objected to introduction of the redacted statements, arguing that the statements left the
jury with little doubt that Eye was the person whose name was redacted in violation
of Bruton v. United States, 391 U.S. 123 (1968). The district court overruled Eye's
objection, convinced that appropriate jury instructions would avoid unfair prejudice.

       Eye objected again before Detective Williams read the first statement to the
jury. Prior to Detective Williams reading the statement, the district court gave the jury
a limiting instruction, stating:

      Ladies and gentlemen of the jury, you are about to hear a summary of
      statements given by Defendant Steven Sandstrom. You may consider
      those statements only in the case against him and not in the case against
      Defendant Gary Eye. What that means is that you may consider
      Defendant Steven Sandstrom'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 even discuss that statement in any way when you are
      deciding if the government has proved beyond a reasonable doubt its
      case against the other defendant, Gary Eye.

Detective Williams then read the statement into evidence.


                                          -15-
       Prior to Detective Blehm reading his prepared statement into evidence, Eye
again objected under Bruton, stating, "I do not believe that the pronouns they have put
in here sufficiently point to the possibility of it being anyone other than Mr. Eye. I
believe it's a Bruton violation and it would be grounds for a mistrial if we read this
statement." Additionally, Eye argued:

      Again, Your Honor, I don't think the pronouns in this are neutral. For
      example, at the bottom of the page says, other person and Rios got out
      of the Intrepid. To be neutral, it should say everyone got out of the
      Intrepid. On the second page it says the person followed the Jeep while
      he drove the Intrepid and the other person lit the Intrepid on fire. I think
      it should say someone else lit the Intrepid on fire. These neutral
      pronouns are not neutral. They point directly to Mr. Eye.

The district court overruled the objection, and Detective Blehm read the statement.

       Eye argues that the government's introduction through Detective Williams and
Detective Blehm of Sandstrom's statements violated his rights under the Confrontation
Clause, notwithstanding the district court's instruction to the jury that it could consider
the confession only against Sandstrom. According to Eye, the district court failed to
do an in-depth analysis of whether the sheer number of redactions, as well as the type
of redactions, such as linking the word "person" to the phrase "person . . . charged
with murder," made redaction meaningless and destroyed his defense. Also, he argues
that the district court failed to distinguish cases in which the defendant, against whom
the statement is offered, is claiming no connection to the crime as opposed to one who
was clearly present but offers a different explanation as to what happened, as in Eye's
case. Finally, Eye argues that Chirino's testimony "left little doubt" who was being
referred to in the redacted confessions. Chirino was asked whether she discussed the
murder with Sandstrom, and she said "yes." Then, when asked whether she asked
Sandstrom any questions about the murder, she replied, "All he told me is that Gary
[Eye] shot somebody."


                                           -16-
        In response, the government asserts that the district court properly denied Eye's
motion to sever based on an alleged violation of Bruton. According to the government,
the district court permitted the two detectives to read to the jury documents each
detective composed based on statements that Sandstrom made to him. The district
court instructed the jury several times that the statements could be used against
Sandstrom but not against Eye. The prosecution redacted the statements to eliminate
all references to Eye or replace them with neutral pronouns, so that the statements did
not identify Eye by name. The government contends that this court has held that,
provided that a statement by a non-testifying codefendant does not facially identify
the defendant and the district court properly instructs the jury, admitting the statement
does not violate the Confrontation Clause, even though other properly admitted
evidence may be linked with the statement to identify the defendant.

      In the alternative, the government contends that even if the district court erred
in admitting the statements, the error was harmless beyond a reasonable doubt, as the
evidence of Eye's guilt was overwhelming and the statements were merely cumulative
of other evidence admitted at trial.

       The Supreme Court's Bruton decision is the relevant precedent. "In Bruton, the
Supreme Court held that the admission of a nontestifying defendant's statement
[facially] inculpating a codefendant violates the codefendant's Confrontation Clause
rights, notwithstanding a curative instruction." United States v. Lewis, 557 F.3d 601,
611 (8th Cir. 2009). Thereafter, "the Court held that there is no Confrontation Clause
violation where the defendant's name and existence are excised from the statement and
limiting instructions are given, even though the confession might implicate the
defendant when linked to other evidence." United States v. Williams, 429 F.3d 767,
772–73 (8th Cir. 2005) (citing Richardson v. Marsh, 481 U.S. 200 (1987)). Finally,
in Gray v. Maryland, 523 U.S. 185, 188 (1998), "the Court reversed a conviction
because a nontestifying codefendant's statement was admitted after being redacted by
substituting a blank or the word 'deleted' for the defendant's name." United States v.

                                          -17-
Logan, 210 F.3d 820, 823 (8th Cir. 2000). The Court held that "notwithstanding
cautionary instructions and neutral redactions, Bruton is violated when the fact that
a statement had been redacted is so obvious as to lead the jury through ordinary
inferences directly to a defendant. The Gray Court held that the obvious indication of
alteration is directly accusatory." Williams, 429 F.3d at 773 (citing Gray, 523 U.S. at
194). To determine whether a statement violates Bruton, we must "look[] at whether
the context is one in which the risk is too great that the jury will not or cannot follow
the cautionary instruction to consider the statement solely against the declarant." Id.
(citing Gray, 523 U.S. at 190–91).

       In Williams, the defendant "argue[d] that the manner in which [his
codefendant's] statement was redacted violated Gray because it impermissibly led the
jury to infer that his name had been deleted." 429 F.3d at 773. According to the
defendant,

      the repeated use of the word "someone" in the recitation of [the
      codefendant's] statement is awkward and so interlocked with the
      extensive testimony about the police surveillance of [the defendant's]
      travels that it was obvious to the jury that only [the defendant] could be
      the "someone" in [the codefendant's] statement.

Id. In response, the government argued "that it properly replaced the defendant's name
with a neutral pronoun, which did not draw attention to the redaction and was not
incriminating unless linked to the co-defendant by other trial evidence." Id.

       Our analysis in Williams is instructive. In evaluating the defendant's argument,
we first discussed Logan and contrasted it with Gray. Id. In Logan, "we considered
the kind and degree of the redactions" in determining whether a Bruton violation
occurred. Id. "We distinguished the almost invisible redaction in Logan, where the
substitution could just as easily have been the defendant's actual words, from the
obviousness of the word 'deleted' which was condemned in Gray." Id. Thereafter, we

                                          -18-
"compared the single instance of redaction in Logan with the violation in Gray, where
the word 'deleted' was repeated four times in oral testimony, and where the jury also
had the written statement containing blanks where the defendant's name had been
excised." Id. We then compared the redaction at issue with Logan and Gray,
concluding, "In contrast to Logan and increasing ten-fold the number of redactions in
Gray, here we count more than forty instances where [the defendant's] name was
replaced with the word 'someone.'" Id. Considering the "kind and degree" of the
redactions, we concluded that

      the redaction of [the codefendant's] statement made it obvious that a
      name had been redacted. The replacements were not seamlessly woven
      into the narrative as in Logan, and the neutral pronoun "someone" may
      have lost its anonymity by sheer repetition. It may well have been clear
      to the jury that the statement had obviously been redacted and that the
      "someone" of the statement was [the defendant]. Gray, 523 U.S. at 196,
      118 S. Ct. 1151. As the Supreme Court held in Gray, this case may fall
      within the Bruton class of cases where a district[] court's repeated
      cautionary instructions cannot protect the defendant. Id. at 192, 118 S.
      Ct. 1151.

Id. at 774 (emphasis added).

      Despite the noted failings of the redacted statement, we held that determining
whether a Bruton violation occurred was unnecessary "because, assuming that a
Confrontation Clause error occurred . . . the error in admitting [the codefendant's]
statement was harmless beyond a reasonable doubt," as the "independent evidence"
against the defendant, "including his own statement, was so overwhelming as to
render any such error harmless beyond a reasonable doubt." Id. at 774.

      In the present case, there are at least 44 redactions in Sandstrom's confessions,
replacing Eye's name with "somebody," "that person," "the person," "the other
person," "he," "caller," "him," and "person . . . charged with murder." As in Williams,

                                         -19-
the jury may have understood that "the statement had obviously been redacted" and
that the neutral words actually referred to Eye. See id. at 774. For example, one of the
redacted statements makes an express reference to "person . . . charged with murder,"
which obviously references Eye. And Rios—the other person in the car with
Sandstrom and Eye when the alleged shootings occurred—was called by name in the
redacted confession, leaving Eye as the only "unnamed" person. As a result, "[t]his
case may fall within the Bruton class of cases where a district[] court's repeated
cautionary instructions cannot protect the defendant." Id.

       Notwithstanding, as in Williams, even if we concluded that a Confrontation
Clause error occurred, any error in admitting the redacted statements was harmless
beyond a reasonable doubt.3 Here, the government produced overwhelming evidence
of Eye's guilt. First, Rios, an eyewitness to both shootings, provided testimony
directly implicating Eye. Her testimony was independent of the redacted statements.
Second, other witnesses corroborated Rios's testimony. Chirino testified that Eye was
"bragging" about killing a "n****r" and that she heard Eye say that McCay "was
walking in my hood on my time so I smoked his a**." Stephanie Sandstrom,
Sandstrom's sister, testified that Eye said that he "shot a n****r on 9th Street" and that
McCay "was walking on his block on his time." Also, Deleon testified that Eye
bragged, "Did you think this was a game? I told you, I killed some n****r."
Sandstrom then said, "That's where [Eye] shot that n****r." Eye started laughing and
said, "[H]ere, n****r, n****r, n****r." Deleon also testified that Eye told him that he
and Sandstrom had been playing a game called "n****r, n****r, n****r." Deleon
described the game as "kill[ing] black people."




      3
       See also Part II.D (discussing the sufficiency of the evidence as to Eye's
convictions on Counts 1 and 2).

                                          -20-
      "Thus, we are convinced that [Eye's] conviction cannot be attributed to
[Sandstrom's] statement." Williams, 429 F.3d at 774 (internal quotations and citation
omitted). The district court did not err in denying Eye's motion to sever.

                                B. Multiplicitous Counts
       Prior to trial, Sandstrom moved to dismiss Counts 1 through 6 of the
indictment, arguing that the indictment improperly subjected him to multiple
punishments for the same offense. Eye filed a motion to dismiss Counts 2, 4, and 6,
arguing that he would be subjected to multiple punishments based on a single
predicate offense arising out of one transaction. Eye also argued that the district court
should require the government to elect between Counts 1, 3, and 5 prior to submission
to the jury. The district court denied both defendants' motions.

       Sandstrom and Eye then moved to dismiss Counts 1, 3, and 5, asserting that
Congress lacked the authority to enact 18 U.S.C. § 245 under the Commerce Clause
or the Thirteenth Amendment. The district court denied that motion as well.

      On appeal, defendants argue that their indictment was impermissibly
multiplicitous and that the legislative history of 18 U.S.C. §§ 245 and 924 does not
manifest congressional intent to break the single course of conduct into six separate
offenses. Therefore, they maintain that the district court erred in denying their motions
to dismiss multiplicitous counts.

                                  1. Counts 1 and 3
      Defendants argue that Counts 1 and 3 are multiplicitous because neither the
express statutory language nor the legislative history of § 245(b) sets forth the
intended unit of prosecution with clarity; therefore, absent a clearly articulated
congressional intent, a court should refrain from turning a single criminal episode into




                                          -21-
multiple offenses.4 Eye and Sandstrom aver that we must apply the rule of lenity
because Congress did not declare the unit of prosecution in § 245(b). According to
defendants, the shootings at 9th Street and Spruce Avenue and at 9th Street and
Brighton Avenue were one course of conduct despite occurring at two locations.
McCay's use and enjoyment of public streets was an ongoing event, and there were
no separate, discrete interferences with his use of the street. They maintain that the
government's decision to break the course of conduct into two discrete offenses is
erroneous. They maintain that two volleys of gunfire separated by a short distance and
a short period time is not enough to create two crimes under the express statutory
language or the legislative history of § 245.

       In response, the government argues that the plain language of § 245 punishes
any person who "willfully injures, intimidates or interferes with" a victim's
participation in or enjoyment of a federally-protected activity because of that victim's
race (or other protected characteristic). 18 U.S.C. § 245(b)(2)(B). Based on this
language, the government contends that the statute unambiguously targets for
prosecution the act of injury, intimidation, or interference. According to the
government, if, as here, a defendant engages in more than one act of injury,
intimidation, or interference, then multiple prosecutions are permitted under the plain
language of the statute.

      In the alternative, the government contends that even if Congress intended for
§ 245(b)(2)(B) to be prosecuted as a course-of-conduct offense, the district court did
not err in refusing to dismiss Counts 1 and 3 as multiplicitous because a
course-of-conduct offense may be charged in more than one count if each act arises
from a separate thought, purpose, or action or impulse. According to the government,
defendants engaged in two separate and distinct attacks against McCay; these attacks


      4
        Even though Sandstrom argues that Counts 1 and 3 are multiplicitous, we note
that he was acquitted on Count 1.

                                         -22-
were not uninterrupted. Time, space and motive separated two distinct homicidal acts.
The first attack took place at the intersection of 9th Street and Spruce Avenue around
6 a.m. The second attack took place approximately ten minutes later and nearly half
a mile away. Moreover, a separate and distinct impulse preceded each attack, as
Sandstrom and Eye initially targeted McCay after bragging that they would "kill a
n****r quick" and after seeing him for the first time near 9th Street and Spruce
Avenue. After the first attack, they drove around the block and returned to the alley
to confirm that McCay was dead. Eye "started freaking out" when they could not find
McCay; they then discussed what they should do next. Defendants then drove around
looking for McCay so that they could "finish him off since [Eye] already shot him."




                                        -23-
      Counts 15 and 36 charge defendants with violating 18 U.S.C. § 245(b)(2)(B),
which provides, in relevant part, that


      5
       Count 1 of the indictment provides:

             On or about March 9, 2005, in Kansas City, Jackson County, in
      the Western District of Missouri, defendants, GARY EYE and STEVEN
      SANDSTROM, while aiding and abetting one another, did willfully, by
      force and threat of force, attempt to injure, intimate and interfere with
      William McCay, an African-American man, by shooting at him with a
      firearm, because of William McCay's race and color, and because he was
      and had been enjoying a facility provided and administered by a
      subdivision of the State of Missouri, namely, the public streets provided
      and administered by the City of Kansas City, in and around 9th Street
      and Spruce Avenue. The commission of this offense included the use of
      a dangerous weapon.

            All in violation of Title 18, United States Code, Section
      245(b)(2)(B) and Section 2.

      6
       Count 3 of the indictment provides:

             On or about March 9, 2005, in Kansas City, Jackson County, in
      the Western District of Missouri, defendants, GARY EYE and STEVEN
      SANDSTROM, while aiding and abetting one another, did willfully, by
      force and threat of force, injure, intimidate and interfere with William
      McCay, an African-American man, by shooting him with a firearm,
      because of William McCay's race and color, and because he was and had
      been enjoying a facility provided and administered by a subdivision of
      the State of Missouri, namely, the public streets provided and
      administered by the City of Kansas City, in and around 9th Street and
      Brighton Avenue. The commission of this offense included the use of a
      dangerous weapon and resulted in the death of William McCay.

            All in violation of Title 18, United States Code, Section
      245(b)(2)(B) and Section 2.


                                        -24-
      (b) [w]hoever, whether or not acting under color of law, by force or
      threat of force willfully injures, intimidates or interferes with, or attempts
      to injure, intimidate or interfere with . . .

             (2) any person because of his race, color, religion or national
             origin and because he is or has been . . .

                    (B) participating in or enjoying any benefit, service,
                    privilege, program, facility or activity provided or
                    administered by any State or subdivision thereof

shall be punished in accordance with the statute. Section 245(b)(5) provides that "if
death results from the acts committed in violation of [§ 245,]" a defendant shall be
"imprisoned for any term of years or for life," "or may be sentenced to death." Using
a public facility is one of several federally-protected activities covered from
interference in § 245(b)(2).

      "An indictment is multiplicitous if it charges the same crime in two counts."
United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005). A multiplicitous
indictment is impermissible because "the jury can convict the defendant on both
counts, subjecting the defendant to two punishments for the same crime in violation
of the double-jeopardy clause of the fifth amendment." Id. When a defendant is
charged twice for the same statutory violation, "the question is whether Congress
intended the facts underlying each count to make up a separate unit of prosecution.
The unit of prosecution is the aspect of criminal activity that Congress intended to
punish." Id. at 447–48 (internal citations omitted).

      To determine whether this indictment is multiplicitous, we must decide
      whether Congress intended to punish [interference with federally-
      protected activities] as a course of conduct, such that the first bit of
      [interference] conduct (which took place [at 9th and Spruce around 6
      a.m]) is of a piece with the second bit (which took place [at 9th and

                                          -25-
      Brighton ten minutes later]), or whether Congress sought to punish
      separately individual acts within an . . . episode. We look to the statutory
      language, legislative history, and statutory scheme to ascertain what
      Congress intended the unit of prosecution to be. When Congress fails to
      establish the unit of prosecution clearly and without ambiguity, we
      resolve doubt as to congressional intent in favor of lenity for the
      defendant.

Id. at 448 (internal quotations and citations omitted).

      In the present case, we need not definitively determine whether Congress
intended to punish interference with federally-protected activities as a course-of-
conduct offense or whether Congress sought to punish each act in a defendant's
criminal episode. Even if we assume that Congress intended for § 245(b)(2)(B) to be
prosecuted as a course-of-conduct offense, the district court did not err in denying the
motions to dismiss Counts 1 and 3 as multiplicitous.

       "To determine how many courses of conduct [Sandstrom and Eye] undertook,
we apply the so-called 'impulse test.'" Id. at 449. Applying this test, "we treat as one
offense all violations that arise from that singleness of thought, purpose or action,
which may be deemed a single impulse." Id. (internal quotations, alteration, and
citation omitted). If an attack is "uninterrupted," then we will "discern a single
impulse." Id.

      Here, the two attacks on McCay were not "uninterrupted." Instead, they were
separated by both time and location. The first attack occurred at 9th Street and Spruce
Avenue at 6:00 a.m. The second attack occurred at 9th Street and Brighton Avenue
approximately ten minutes later.7


      7
        The individual who reported the second shooting called 911 at 6:12 a.m. The
caller placed the call approximately one minute after hearing the shots.

                                         -26-
       Moreover, the two attacks did not arise from a "singleness of thought, purpose
or action." See id. at 449. Initially, the first attack was based on Eye's desire to shoot
at an African American, as Sandstrom advised Eye that he had previously done. Eye
commented to Sandstrom that "if you get to do one, I get to do one." While driving
to pick up Chrisp, Eye told Sandstrom that when he saw an African American "it's on
site," meaning that when Eye saw a black person, there would be a problem. After
picking up Chrisp, Sandstrom informed Chrisp that she was "about to witness a
homicide." Rios testified that Eye followed through with his desire to shoot an African
American when Eye spotted McCay at 9th Street and Spruce Avenue, told Sandstrom
to hand him the gun and turn down the alley, and fired approximately two shots at
McCay.

      In contrast, Sandstrom, Eye, and Rios initiated the second attack to prevent
McCay from reporting the first shooting to avoid prosecution. According to Rios, once
Eye discovered that McCay was no longer on 9th Street, he "started freaking out" and
became "frantic" because McCay was no longer there. A discussion ensued in which
Rios told Sandstrom to find McCay because McCay "was a case that we would
probably catch," so they "needed to find him." Rios informed Sandstrom and Eye that
McCay was a "witness" that they needed to "finish off" so that they would not get in
trouble.

       Given the multiple purposes of their separate acts at different times and
locations, we hold that the district court did not err in refusing to dismiss either Count
1 or Count 3.

                                 2. Counts 3 and 5
       As discussed supra, Count 3 charged defendants with violating § 245(b)(2)(B)
for shooting McCay, resulting in his death, at 9th Street and Brighton Avenue because




                                          -27-
of his race and because he was enjoying the public streets. Count 58 charged that the
same conduct also violates 18 U.S.C. §§ 1512(a)(1)(C) and (A)(3)(A)—killing McCay
to prevent him from reporting to law enforcement that Sandstrom and Eye interfered
with his right to enjoy the public streets.

       Defendants assert that the elements of the offense charged in Count 3 are a
subset of the elements of the offense charged in Count 5; in other words, Count 3 does
not require proof of a fact which Count 5 does not require. According to Sandstrom
and Eye, as to Count 5, the government had to prove that defendants, while aiding and
abetting one another, knowingly killed McCay with the intent to prevent McCay from
communicating to a law enforcement officer information related to the commission
or possible commission of a "federal offense." In order for the conduct charged in
Count 3 to rise to the level of a "federal offense," the shooting of McCay had to have


      8
       Count 5 provides;

             On or about March 9, 2005, in the Western District of Missouri,
      the defendants, GARY EYE and STEVEN SANDSTROM, while aiding
      and abetting one another, did knowingly kill William McCay with the
      intent to prevent William McCay from communicating to a law
      enforcement officer of the United States information related to the
      commission or possible commission of a federal offense, that is, the
      interference with his free exercise and enjoyment of a right secured to
      him by the laws and the Constitution of the United States, namely, his
      right to the use and enjoyment of a public facility, the public streets
      provided and administered by the City of Kansas City, Missouri, free
      from intimidation based upon race and color. The death of William
      McCay involved circumstances constituting murder as defined in Title
      18, United States Code, Section 1111, in that defendants GARY EYE
      and STEVEN SANDSTROM unlawfully killed William McCay
      willfully, deliberately, and with premeditation and aforethought.

            All in violation of Title 18, United States Code, Section
      1512(a)(1)(C), (a)(3)(A) and Section 2.

                                        -28-
been committed because of McCay's race and because he was enjoying the use of
public streets. Thus, those motivational elements of Count 3 were also included in the
proof required for a conviction on Count 5. Defendants assert that if those
motivational factors were not present, then they did not kill McCay with the intent to
prevent him from communicating information related to the commission or possible
commission of a federal offense.

      In response, the government argues that the district court correctly concluded
that Counts 3 and 5 were not multiplicitous even though both counts arose from the
second attack on McCay. According to the government, a single act may give rise to
two separate charges. And, Counts 3 and 5 were not multiplicitous because they each
required proof of an element that was not required to prove the other.

        "The Double Jeopardy Clause is violated in a single proceeding only where
multiple punishments are imposed for the same crime contrary to the legislature's
intent." United States v. Gamboa, 439 F.3d 796, 809 (8th Cir. 2006) (internal
quotations, alterations, and citations omitted). We apply the Blockburger test "to
determine whether two crimes are the same for double jeopardy purposes." Id. (citing
Blockburger v. United States, 284 U.S. 299, 304 (1932)). The Blockburger test
provides that "if each offense requires proof of an element not required by the other,
the crimes are not considered the same, and a double jeopardy challenge necessarily
fails." Id. (internal quotations, alteration, and citation omitted). "We have recognized
that the Blockburger test focuses on the statutory elements of the offenses, rather than
the evidence presented at trial." Id. (internal quotations and citations omitted). To
properly analyze a Double Jeopardy claim, we must "examine not only the statutory
provisions at issue, but also the specific charges brought against the defendant in the
indictment." Id.

       In applying the Blockburger test, we must also ensure that one offense is not a
"lesser included offense" of the other. See Rutledge v. United States, 517 U.S. 292,

                                         -29-
306–07 (1996) (holding that because a drug conspiracy violation is a lesser included
offense of a continuing criminal enterprise violation, a defendant may not be
convicted of both offenses). That is, we must determine whether both offenses
"require[] proof of any element that is not a part of the [other] offense." Id. at 298. A
"lesser included offense" is "[a] crime that is composed of some, but not all, of the
elements of a more serious crime and that is necessarily committed in carrying out the
greater crime." Black's Law Dictionary 1109 (7th ed. 1999). "For double-jeopardy
purposes, a lesser included offense is considered the 'same offense' as the greater
offense, so that acquittal or conviction of either offense precludes a separate trial for
the other." Id.

       Here, Count 3 charged defendants with violating § 245(b)(2)(B). To establish
a violation of § 245(b)(2)(B), the government had to prove that the defendants (1)
used "force or threat of force"; (2) acted to "willfully injure[], intimidate[], or
interfere[] with" McCay (or attempted to do so); (3) acted because of McCay's race;
and (4) acted because McCay was enjoying the public streets of Kansas City,
Missouri. 18 U.S.C. § 245(b)(2)(B); see also United States v. Nelson, 277 F.3d 164,
185–86 (2d Cir. 2002) ("Likewise, in the case at bar, similar constitutional shoals can
be avoided by giving full effect to the congressional purpose behind
§ 245(b)(2)(B)—by requiring, in other words, as elements of the crime defined by
§ 245(b)(2)(B) that the forceful injury, intimidation, or interference that the statute
addresses be committed 'because' of the victim's race or religion, etc., and 'because' the
victim was participating in or enjoying a facility, etc., provided or administered by a
State or a subdivision thereof.").

      Count 5 charged defendants with witness tampering, in violation of
§ 1512(a)(1)(C) and (a)(3)(A).9 Section 1512(a)(1)(C) provides that

      9
      Section 1512(a)(3)(A) provides that the punishment for a violation of
§ 1512(a)(1)(C) "in the case of a killing" is the death penalty or life imprisonment.


                                          -30-
      [w]hoever kills or attempts to kill another person, with intent to
      . . . prevent the communication by any person to a law enforcement
      officer or judge of the United States of information relating to the
      commission or possible commission of a Federal offense or a violation
      of conditions of probation, parole, or release pending judicial
      proceedings . . . shall be punished as provided in paragraph (3).

To prove that each defendant violated § 1512(a)(1)(C), the government had to
establish that

      "(1) the defendant killed or attempted to kill a person; (2) the defendant
      was motivated by a desire to prevent the communication between any
      person and law enforcement authorities concerning the commission or
      possible commission of an offense; (3) that offense was actually a federal
      offense; and (4) the defendant believed that the person in (2) above
      might communicate with the federal authorities."

United States v. Rodriguez-Marrero, 390 F.3d 1, 13 (1st Cir. 2004) (quoting United
States v. Stansfield, 101 F.3d 909, 918 (3d Cir. 1996)).

       Applying the Blockburger test, Count 3 required the government to prove
elements that it was not required to prove under Count 5: (1) that Sandstrom and Eye
acted because of McCay's race and (2) that Sandstrom and Eye acted because McCay
was enjoying a federally-protected activity. 18 U.S.C. § 245(b)(2)(B). Conversely,
Count 5 required the government to prove an element that it is not required to prove
under Count 3: that the defendants acted to prevent McCay from communicating with
law enforcement authorities about the possible commission of a federal offense. 18
U.S.C. § 1512(a)(1)(C). And, because Count 5—witness tampering—required the
government to prove at least one element different from Count 3—interference with
federally-protected activities—it is not a lesser included offense of Count 3.




                                        -31-
      Accordingly, the district court did not err in declining to dismiss either Count
3 or Count 5.

                                3. Counts 2 and 4
      Counts 2 and 4 charged defendants with firearms violations. Count 210 charged
them with using a firearm during the commission of a violent crime—the first
shooting at 9th Street and Spruce Avenue—in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii). Count 411 charged them with using a firearm during the

      10
        Count 2 provides:

             On or about March 9, 2005, in Kansas City, Jackson County, in
      the Western District of Missouri, defendants, GARY EYE and STEVEN
      SANDSTROM, while aiding and abetting one another, knowingly used,
      carried, and discharged; and caused to be used, carried, and discharged,
      a firearm, namely a .22 caliber revolver, during and in relation to a crime
      of violence for which they may be prosecuted in a court of the United
      States, that is, the offense charged in Count One of the Indictment and
      incorporated herein by reference.

            All in violation of Title 18, United States Code, Section
      924(c)(1)(A)(iii) and Section 2.
      11
        Count 4 provides:

             On or about March 9, 2005, in Kansas City, Jackson County, in
      the Western District of Missouri, defendants, GARY EYE and STEVEN
      SANDSTROM, while aiding and abetting one another, knowingly used,
      carried, and discharged; and caused to be used, carried, and discharged,
      a firearm, namely a .22 caliber revolver, during and in relation to a crime
      of violence for which they may be prosecuted in a court of the United
      States, that is, the offense charged in Count Three of the Indictment and
      incorporated herein by reference. In committing this offense, defendants,
      GARY EYE and STEVEN SANDSTROM, caused the death of William
      McCay through the use and discharge of said firearm. The death of
      William McCay involved circumstances constituting murder as defined

                                         -32-
commission of a violent crime—the second shooting at 9th Street and Brighton
Avenue—causing McCay's death in circumstances constituting murder.

      According to defendants, because Counts 1 and 3 were multiplicitous, the
weapons offenses predicated on those counts—Counts 2 and 4—were also
multiplicitous. They argue that both counts charged them with using a firearm during
a crime of violence, with Count 4 adding that the use of the firearm resulted in
McCay's death. According to defendants, this does not make Count 4 a distinct crime
from Count 2 because Count 4 merely reflects a penalty enhancement permitted by
§ 245(b) depending on the injury suffered.

       In response, the government contends that Counts 2 and 4 are not multiplicitous
because it is well-settled that multiple firearms offenses may be charged in the same
indictment if they are based on different predicate crimes of violence, even if the
predicate crimes of violence were part of a single criminal transaction, provided that
the predicate crimes of violence are not themselves multiplicitous.

      Where a defendant is convicted of "two distinct underlying offenses" "during
each of which he employed a firearm," then "they do not constitute a single underlying
offense." United States v. Allee, 299 F.3d 996, 1003 (8th Cir. 2002). Thus, a
defendant's argument "that the language of [§ 924(c)] does not permit two or more
convictions under section 924(c) when the predicate crimes of violence arise from the
same course of conduct" necessarily fails. United States v. Rahim, 431 F.3d 753, 757
(11th Cir. 2005).


      in Title 18, United States Code, Section 1111, in that defendants GARY
      EYE and STEVEN SANDSTROM unlawfully killed William McCay
      willfully, deliberately, and with premeditation and malice aforethought.

            All in violation of Title 18, United States Code, Section
      924(c)(1)(A)(iii), (j)(1), and Section 2.

                                        -33-
      Nothing in the language of section 924(c) supports [this] view; to the
      contrary, section 924(c) makes it a crime to use, carry, or possess a
      firearm "during and in relation to any crime of violence . . . ." Id.
      § 924(c)(1)(A) (emphasis added). Section 924(c) has no language
      limiting its reach to offenses occurring in a separate "criminal
      transaction" or "course of conduct," and we cannot and will not read that
      requirement into the statute.

Id. (holding that § 924(c) permitted conviction of two violations arising from
predicate crimes of armed bank robbery and carjacking which arose from the same
course of conduct). "[S]eparate crimes do not become a single offense merely because
they arise out of the same criminal episode or because the same gun is paired with
each underlying offense." United States v. Floyd, 81 F.3d 1517, 1527 (10th Cir. 1996)
(internal quotations and citation omitted).

       As explained in Part II.B.1, Counts 1 and 3 are not multiplicitous and can
therefore serve as separate predicate offenses supporting separate firearms offenses
in Counts 2 and 4. Therefore, the district court did not err in declining to dismiss
either Count 2 or Count 4.

                                  4. Counts 4 and 6
      Both Counts 4 and 6 charged defendants with using a firearm during the
commission of a violent crime—the second shooting at 9th Street and Brighton
Avenue resulting in McCay's death in circumstances constituting murder. Count 4 was
predicated on the offense charged in Count 3—violating § 245(b)(2)(B) for shooting
McCay, resulting in his death, at 9th Street and Brighton Avenue because of his race
and because he was enjoying the public streets. Count 612 was predicated on the


      12
        Count 6 provided:

            On or about March 9, 2005, in Kansas City, Jackson County, in
      the Western District of Missouri, defendants, GARY EYE and STEVEN

                                        -34-
offense charged in Count 5—violating §§ 1512(a)(1)(C) and (A)(3)(A) by killing
McCay to prevent him from reporting to law enforcement that Sandstrom and Eye
interfered with his right to enjoy the public streets.

       Sandstrom and Eye make two arguments in support of their claim that Counts
4 and 6 are multiplicitous. First, they assert that because Counts 3 and 5 are
multiplicitous, the weapons offenses predicated on those counts—Counts 4 and
6—are multiplicitous. We reject this argument based on our previous analysis in Part
II.B.3.

       Second, they make the alternative argument that Counts 4 and 6 are based on
the exact same criminal conduct. According to the defendants, although the predicate
offenses of Counts 3 and 5 were charged under different statutes, Counts 4 and 6 were
charged under the same statute—§ 924(c)(1)(A)(iii). And, the criminal conduct
underlying Counts 4 and 6 was the same—the shooting and killing of McCay at 9th
Street and Brighton Avenue. In support of this argument, the defendants rely on
United States v. Phipps, 319 F.3d 177, 184–85 (5th Cir. 2003), in which the Fifth


      SANDSTROM, while aiding and abetting one another, knowingly used,
      carried, and discharged; and caused to be used, carried, and discharged,
      a firearm, namely a .22 caliber revolver, during and in relation to a crime
      of violence for which they may be prosecuted in a court of the United
      States, that is, the offense charged in Count Five of the Indictment and
      incorporated herein by reference. In committing this offense, defendants,
      GARY EYE and STEVEN SANDSTROM, caused the death of William
      McCay through the use and discharge of said firearm. The death of
      William McCay involved circumstances constituting murder as defined
      in Title 18, United States Code, Section 1111, in that defendants GARY
      EYE and STEVEN SANDSTROM unlawfully killed William McCay
      willfully, deliberately, and with premeditation and malice aforethought.

            All in violation of Title 18, United States Code, Section
      924(c)(1)(A)(iii), (j)(1), and Section 2.

                                         -35-
Circuit held that because § 924(c) did not unambiguously authorize multiple
convictions for the single use of a firearm based on multiple predicate offenses, the
rule of lenity applied and the defendants were entitled to dismissal of one firearm
count.

       In response, the government notes that Phipps is not binding on this court. In
addition, it argues that Phipps was wrongly decided because the statute under which
defendants were convicted unambiguously punishes any person who "uses" a firearm
"during and in relation to any crime of violence." 18 U.S.C. § 924(c)(1) (emphasis
added). According to the government, regardless of how the unit of prosecution is
defined, Sandstrom and Eye used a firearm during the crime of violence charged in
Count 3 and used a firearm during the crime of violence charged in Count 5. Finally,
the government maintains that Phipps is contrary to United States v. Lucas, 932 F.2d
1210 (8th Cir. 1991).

        "Section 924(c)(1) proscribes the carrying (or use) of 'a firearm' during the
commission of 'any crime of violence or drug trafficking crime.'" United States v.
Freisinger, 937 F.2d 383, 388 (8th Cir. 1991) (quoting 18 U.S.C. § 924(c)(1)).
"Offenses under section 924(c) are defined in terms of using or carrying firearms in
relation to a drug trafficking crime or a crime of violence, not in terms of when the
firearms were possessed." Lucas, 932 F.2d at 1221. Although we have previously held
that § 924(c)(1) "authorizes prosecution for the possession of each firearm a defendant
possesses during and in relation to a single crime of violence or drug trafficking
crime," Freisinger, 937 F.2d at 390, we have never addressed whether § 924(c)(1)
permits multiple convictions for the single use of a firearm based on multiple
predicate offenses. Nevertheless, our prior precedent suggests that multiple underlying
offenses support multiple § 924(c)(1) convictions.

      In Freisinger, the defendant argued that § 924(c)(1) did not permit "multiple
convictions for carrying more than one firearm during the course of one drug

                                         -36-
trafficking offense." Id. at 388. In response, the government asserted "that the multiple
convictions are permissible under the statute." Id. We observed that "[t]he question
of how many convictions can lawfully be obtained under these circumstances is a
question of the appropriate unit of prosecution, and that is a question of legislative
intent." Id. We held that the "unit of prosecution" with regard to § 924(c)(1) was not
ambiguous because the statute "preface[d] the object of the offense by the word 'a.'"
Id. at 389.

        After finding that the unit of prosecution was unambiguous, we discussed the
Sixth Circuit's holding "that separate section 924(c)(1) convictions may be obtained
where there are multiple drug trafficking crimes or multiple crimes of violence, but
'not . . . because more than one gun was involved.'" Id. (quoting United States v.
Henry, 878 F.2d 937, 942 (6th Cir. 1989)). The defendant in Henry "committed two
drug trafficking crimes with three firearms," and "[t]he government included two
section 924(c)(1) counts in the indictment." Id. "Each of the two gun counts in the
indictment referred to both of the drug trafficking offenses, rather than predicating
separate section 924(c)(1) charges on the separate underlying drug trafficking
offenses." Id. The Sixth Circuit determined that "the government could have charged
more than one section 924(c)(1) violation, but only by basing each count on a
different drug trafficking offense." Id. (citing Henry, 878 F.2d at 942–44). We rejected
the Sixth Circuit's conclusion in Henry that "multiple section 924(c)(1) offenses must
be supported by multiple underlying offenses," id.; however, we never suggested that
multiple § 924(c)(1) offenses could not be supported by multiple predicate offenses.
See id.

      In fact, we acknowledged in dicta the potential permissibility of multiple
convictions for the single use of a firearm based on multiple predicate offenses in
Freisinger when we discussed the Tenth Circuit's decision in United States v. Chalan,
812 F.2d 1302 (10th Cir. 1987). Id. at 389, 390. We explained:



                                          -37-
      In Chalan the court held that felony murder and robbery (where the
      robbery was the felony supporting the felony murder charge) were but
      a single crime of violence; thus, even if multiple underlying offenses
      would support multiple section 924(c)(1) convictions—a question which
      the court did not have to decide—multiple section 924(c)(1) convictions
      were not proper in that case because there were not multiple underlying
      offenses.

Id. at 389. In a footnote, we observed that "[n]othing in Chalan suggests that more
than one firearm was involved. Id. Thereafter, we concluded that Chalan did not
support a holding that only a single violation of § 924(c)(1) occurs when a defendant
commits one drug trafficking offense involving more than one firearm, stating:

      As previously noted, in Chalan the court found that the multiple
      underlying offenses—felony murder and robbery—were but a single
      offense. By holding that only one crime of violence occurred, the court
      eliminated the only arguable basis for multiple section 924(c)(1)
      convictions in that case, because only one firearm was involved.

                                         ***
      Since only one firearm was involved and only one crime of violence
      occurred, there was simply no legal basis for more than one section
      924(c)(1) conviction. Obviously, under such circumstances multiple
      section 924(c)(1) convictions would constitute double jeopardy.

Id. at 390, 390 n.7 (emphasis added).

      Following Freisinger, we explained that "[w]hat distinguishes one offense from
another and gives them separate legal identities is the 'use' attributed to the firearm:
each separate use of a firearm constitutes a separate offense, even where there is only
one predicate drug-trafficking crime." United States v. Canterbury, 2 F.3d 305, 306
(8th Cir. 1993).



                                         -38-
       Here, there is a "legal basis" for more than one § 924(c)(1) conviction because
one firearm was used to commit two different offenses—Sandstrom and Eye used the
firearm during the commission of a crime of violence charged in Count 3 and also
used the firearm during the commission of a crime of violence charged in Count 5. See
Freisinger, 937 F.2d at 390. Counts 4 and 6 are distinguishable from one another
because the defendants "used" the firearm at issue in both counts to commit separate
offenses, even though the offenses occurred simultaneously. See Cantebury, 2 F.3d
at 306.

      Therefore, we hold that the district court did not err in refusing to dismiss either
Count 4 or Count 6 as multiplicitous.13

                     C. Constitutionality of 18 U.S.C. § 245
      Defendants challenge the constitutionality of § 245, arguing that Congress
lacked the authority to enact it pursuant to its Commerce Clause powers, the
Thirteenth Amendment, the Fourteenth Amendment, or the Fifteenth Amendment.

      In response, the government argues that the district court properly rejected
defendants' challenges to the constitutionality of § 245 because Congress acted well

      13
         Our interpretation of our circuit precedent is in accord with the decisions of
our sister circuits. "The Third, Sixth, and Tenth Circuits have upheld multiple section
924(c) convictions where the same predicate crimes of violence, bank robbery and
carjacking, occurred 'virtually simultaneously.'" Rahim, 431 F.3d at 758 (citing United
States v. Casiano, 113 F.3d 420, 425 (3d Cir. 1997); United States v. Burnette, 170
F.3d 567, 571–72 (6th Cir. 1999); United States v. Romero, 122 F.3d 1334, 1343–44
(10th Cir. 1997)). But see Phipps, 319 F.3d at 184–85 (holding that § 924(c) did not
unambiguously authorize multiple convictions for single use of single firearm based
on multiple predicate offenses, and thus, under rule of lenity, defendants, who used
single firearm a single time to commit dual offenses of kidnaping and carjacking, were
entitled to dismissal of one firearm count; unit of prosecution under statute was
combination of predicate offense and use, carriage, or possession of firearm, and not
either predicate offense alone or mere use, carriage, or possession).

                                          -39-
within its authority under both § 2 of the Thirteenth Amendment and under the
Commerce Clause in enacting the statute. The government represents that every court
to have considered the issue—including this court—has upheld the constitutionality
of the statute.

       The government is correct. We have already held that § 245 "is constitutional
as applied under the thirteenth amendment." United States v. Bledsoe, 728 F.2d 1094,
1097 (8th Cir. 1984). In Bledsoe, we explained that the Thirteenth Amendment
permits Congress to "reach purely private action" and there could be no "doubt that
interfering with a person's use of a public park because he is black is a badge of
slavery." Id.; see also United States v. Nelson, 277 F.3d 164, 190–91 (2d Cir. 2002)
("On the basis of the foregoing analysis, we similarly conclude that § 245(b)(2)(B)'s
prohibition against private violence motivated by the victim's race, religion, etc., and
because of the victim's use of a public facility, etc., falls comfortably within
Congress's power under the Thirteenth Amendment rationally to determine what are
the badges and the incidents of slavery, and the authority to translate that
determination into effective legislation.") (internal quotations, alterations, and citation
omitted); United States v. Allen, 341 F.3d 870, 884 (9th Cir. 2003) ("We agree with
the Second and Eighth Circuits, for the reasons set forth in their well-reasoned
opinions, that the enactment of § 245(b)(2)(B) was a constitutional exercise of
Congress's authority under the Thirteenth Amendment.").

       Because we hold that § 245 is a valid exercise of Congress's power under the
Thirteenth Amendment, we need not address the remaining constitutional challenges
to § 245. See Nelson, 277 F.3d at 174–75 ("Because the government no longer
presents the Fourteenth Amendment argument, and because we conclude that this
argument is not necessary to sustaining the constitutionality of § 245(b)(2)(B) as
applied in this case, we decline to address it. Similarly, because we determine that the
Commerce Clause argument is also unnecessary to the constitutionality of this statute
as here applied, we set it to one side as well. We arrive at these conclusions because

                                           -40-
we believe that § 245(b)(2)(B) falls comfortably within Congress's powers under the
Thirteenth Amendment as that Amendment has authoritatively been interpreted.").

                             D. Prosecutor's Comments
       Sandstrom and Eye also challenge comments that the prosecutor made during
closing argument, arguing that the prosecutor improperly shifted the burden of proof.
During closing argument, the prosecutor discussed some of the jury instructions with
the jury "to explore some of what [he] expect[ed] the defense to say" and to obtain "a
clear understanding of what it is that the government is required to prove." The
prosecutor then discussed the jury instructions regarding Counts 1 and 3, stating:

            Now, ladies and gentlemen, it is important to remember that the
      law, our law protects us all from us all. Counts 1 and 3 are not about
      racism. Counts 1 and 3 do not require the government to prove that
      anyone is racist. No one's views, no matter how repugnant they may be,
      subject one to a criminal trial in the United States of America.

             What Instruction 24, regarding the shooting at 9th and Spruce, and
      Instruction 25, regarding the shooting at 9th and Brighton require is that
      the government demonstrate that William McCay was selected because
      of his race. We, as a country, have decided that we will not tolerate
      selecting a fellow human being for violence, for death, simply because
      of the pigment of his skin or the accident of his birth.

             Nowhere in that instruction does it require the government to
      demonstrate or satisfy to anyone that these two individuals are racists.
      But, ladies and gentlemen, if not race, why? There is not a shred of
      evidence that either of these two individuals knew William McCay
      before they laid eyes on him on March 9th of 2005. Not a shred of
      evidence. No relationship, no grudge, no dispute, no exchange of words
      of any kind or any prior relationship whatsoever. If not race, why?

             Well, the defendant's own words. Gary Eye. You do one, I do one.

             Gary Eye. I smoked that n***r.

                                        -41-
             Gary Eye. N***r was in my hood on my time. My hood on my
      time. So I smoked his ass.

             Steven Sandstrom in the car with Vincent Deleon as they drive
      past the crime scene the same day of the murder, that's where Gary shot
      that n****r.

             Circumstantial evidence of intent, corroboration is reflected in the
      words and the deeds and the vocabulary. And, ladies and gentlemen, I,
      again, submit to you, if not race, why? Not a single alternative motive
      has been supplied.

(Emphasis added.)

       Both Sandstrom and Eye objected to the prosecutor's statements, arguing that
the prosecutor shifted the burden of proof. In their view, the prosecutor's statements
alluding to the absence of any alternative to race as a motive for the crime made the
jury believe the defense had the burden to show such an alternative existed.
Defendants maintained that this was constitutional error. In response, the prosecutor
stated that it was not a comment about the defendants' failure to testify. The district
court overruled the objection, and defendants moved for a mistrial. The district court
denied the motion. No curative instruction was requested or given.

       On appeal, defendants argue that the prosecutor improperly asserted to the jury
that the defense failed to provide the jury with any motive other than race. They
maintain that they were the only persons who could testify as to their motive, or lack
thereof. According to defendants, the prosecutor's argument was an improper
comment on their Fifth Amendment right to remain silent, and it improperly shifted
the burden of proof to the defense; as a result, the district court abused its discretion
in denying their request for a mistrial based on the prosecutor's argument.




                                          -42-
       In response, the government argues that the district court did not abuse its
discretion in denying defendants' motions for a mistrial based on the prosecutor's
closing argument. It asserts that the prosecutor's indirect comment did not demonstrate
an intent by the prosecutor to draw attention to the defendants' silence, nor would a
jury naturally and necessarily understand the comment as highlighting defendants'
failure to testify. According to the government, the prosecutor made the comment as
he was explaining to the jury what the government must establish to prove a violation
of § 245(b)(2)(B), and it was a permissible comment on defense counsels' failure to
counter the evidence represented by the government. In the alternative, the
government argues that even if the comment was improper, the district court did not
abuse its discretion in denying defendants' motions for mistrial because they were not
unfairly prejudiced by the isolated comment. The government maintains that it
provided overwhelming evidence of the defendants' guilt and that the district court
provided sufficient instructions to the jury regarding the government's burden of proof
and the defendants' right not to testify. Therefore, the government argues that
Sandstrom and Eye were not deprived of a fair trial.

       "It is well established that the Fifth Amendment forbids either comment by the
prosecution on the accused's silence or instructions by the court that such silence is
evidence of guilt." United States v. Gardner, 396 F.3d 987, 988 (8th Cir. 2005)
(internal quotations, alterations, and citation omitted). A defendant must establish that
"a prosecutor's comment was both improper and prejudicial to the defendant's
substantial rights" to obtain a new trial. Id. We "review[] de novo whether the
prosecutor has unconstitutionally commented on the defendant's failure to testify." Id.
We then review for an abuse of discretion a district court's denial of a motion for a
new trial. Id. at 989.

      Because the prosecutor in the present case "neither directly commented on the
defendant[s'] silence, nor demonstrated an intent to draw attention to that silence," we
must determine "whether 'the jury would naturally and necessarily understand the

                                          -43-
comments as highlighting the defendant[s'] failure to testify.'" Id. (quoting Herrin v.
United States, 349 F.3d 544, 546 (8th Cir. 2003)) (emphasis added in Gardner),
"Comments must be evaluated in the context of the entire closing arguments and the
evidence introduced at trial." Id. A court should not take "too narrow a view of both
the comment and the evidence" because "a court should not lightly infer that a
prosecutor intends an ambiguous remark to have its most damaging meaning or that
a jury, sitting through lengthy exhortation, will draw that meaning from the plethora
of less damaging interpretations." Id. at 992 (internal quotations and citation omitted).

       In general, the government is permitted to "comment on the failure of the
defense, as opposed to the defendant, to counter or explain the evidence unless the
jury would naturally and necessarily take it to be a comment on the failure of the
accused to testify." Id. at 991 (internal quotations, alteration, and citation omitted)
(holding that no basis existed "for inferring that the jury would naturally and
necessarily construe a reference to no evidence 'from the defense' as an indirect
comment on [the defendant's] failure to testify."). And, although a prosecutor's
comment during closing argument "that the government's evidence was unrefuted,
uncontradicted, or unexplained may constitute an indirect comment on the defendant's
failure to testify, the issue requires an analysis of the trial evidence and the context in
which the comment was made." Id.; see also United States v. Moore, 129 F.3d 989,
993 (8th Cir. 1997) (holding that prosecutor's characterization of evidence as
uncontroverted did not constitute prejudicial misconduct by expressing personal
opinion on issue of defendant's guilt and calling attention to defendant's failure to
testify, as characterization of evidence simply referred to strength and clarity of
government's evidence); United States v. Emmert, 9 F.3d 699, 702 (8th Cir. 1993)
(holding that prosecutor did not improperly comment on defendant's failure to testify
by stating during rebuttal summation that there was "no evidence," "no testimony,"
and "no explanation" to counter government's theory that telephone calls to defendant
were placed in connection with motorcycle business rather than with drug conspiracy;
comments were made in response to closing arguments of defendant's counsel that

                                           -44-
defendant operated legitimate business, and did not manifest intention by prosecutor
to call attention to defendant's failure to testify).

       This type of remark "is improper only when the jury would naturally and
necessarily take it as a comment on the defendant's failure to testify because no one
other than the defendant could have refuted the evidence in question." Gardner, 396
F.3d at 992. "[T]he question is not whether the jury possibly or even probably would
view the challenged remark in this manner, but whether the jury necessarily would
have done so." Id. (internal quotations and citation omitted). For example, "a
prosecutor may not comment on a defendant's failure to present evidence to contradict
the government's case if the defendant alone had the information to do so." United
States v. Triplett, 195 F.3d 990, 995 (8th Cir. 1999) (internal quotations and citations
omitted) (emphasis added).

       In the present case, the prosecutor's comments were not improper. We conclude
that the jury would not have "naturally and necessarily" taken such comments as
highlighting defendants' failure to testify. The prosecutor made the contested
comments in the context of explaining the government's burden of proof with respect
to Counts 1 and 3. The prosecutor correctly advised the jury that the government need
not establish that Sandstrom and Eye were "racists" to prove a violation of
§ 245(b)(2)(B); instead, the jury could infer from the evidence, including the
defendants' "intent," "words," "deeds," and "vocabulary," that they selected their
victim based on his race—an essential element of a § 245(b)(2)(B) violation.

       Furthermore, the prosecutor's comments that "if not race, why" and "[n]ot a
single alternative motive has been supplied" were comments on the defense's
failure—not the defendants' personal failure—"to counter or explain the evidence."
See Gardner, 396 F.3d at 991. During trial, the government introduced testimony from
which a jury could reasonably infer that defendants selected McCay because of his
race. Rios testified that, after Sandstrom said that he "shot at a n****r at 7-Eleven,"

                                         -45-
Eye replied that "if you get to do one, I get to do one." She also testified that Eye said
that he shot McCay because "he was a n****r in my hood." Deleon testified that both
Sandstrom and Eye said that they would "kill a n****r quick" and that Eye said that
he and Sandstrom had been playing "n****r, n****r, n****r" when they shot McCay.

        Defense counsel for Sandstrom and Eye attempted to counter this evidence.
Eye's counsel stated to the jury at the beginning of trial that "Eye is not a racist and
there will be no direct evidence, credible evidence to support the allegation of race in
this case." Eye's counsel then cross-examined government witnesses, such as Deleon
and Chirino, in an attempt to show that Eye was not motivated by race. Eye's counsel
called several witnesses, including Eye's former counselor at a juvenile facility, his
sister's best friend, and his sister, who testified that Eye got along with African
Americans and did not, to their knowledge, use racial slurs.

       Sandstrom's counsel also commented to the jury that "there is no motive, no
race motive. There is no reason for a race motive. Didn't know the shooting was going
to occur. If you didn't know it was going to occur, there is no intent. If there is no
intent, there's no motive to make it happen." Like Eye's counsel, Sandstrom's counsel
also cross-examined government witnesses, attempting to show lack of a racial
motive. And, Sandstrom's own defense witnesses, such as his family, friends, a
juvenile detention center employee, and Sandstrom's former probation officer, testified
that Sandstrom got along with African Americans and did not, to their knowledge, use
racial slurs. At the conclusion of the trial, both Sandstrom's counsel and Eye's counsel
argued to the jury that the crimes were not racially motivated.

      While defense counsel, through both direct and cross examination, attempted
to show that Sandstrom and Eye did not act on the basis of race, the jury could have
reasonably concluded that they failed to establish an alternative motive for the
shootings.



                                          -46-
      Finally, the prosecutor could properly comment on defendants' failure to present
evidence to contradict the government's theory of a racial motivation because
Rios—in addition to defendants—was an eyewitness to the shootings and testified to
the motivation for the shootings. Therefore, this is not a case in which the defendants
alone possessed the necessary information to contradict the government's case. See
Triplett, 195 F.3d at 995.

       Thus, we hold that the prosecutor's comments were not improper and the district
court did not abuse its discretion in denying defendants' motions for a mistrial.

                   E. Sufficiency of the Evidence—Counts 1 and 2
       Eye asserts that the evidence was insufficient to convict him on Counts 1 and
2 because it was impossible for McCay, the alleged victim, to have gone from the first
location on foot to the second location in less time than it took defendants to drive
there.

        In response, the government argues that sufficient evidence supports Eye's
convictions arising from the first shooting at 9th Street and Spruce Avenue. In support
of its argument, the government relies on (1) Rios's testimony that she saw Eye shoot
McCay at 9th Street and Spruce Avenue; (2) a witness who testified to hearing
gunshots close to the intersection of 9th Street and Spruce Avenue; and (3) the jury's
consideration and rejection of Eye's argument that McCay could not have been the
victim of both the Spruce shooting and the Brighton shooting because the distance
between the two shootings—less than half a mile—was too great for McCay to travel
in the time that it took for the defendants to travel from one intersection to the other.

      We review de novo a district court's denial of a motion for judgment of
      acquittal. This 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. We will only reverse a jury's verdict where no

                                          -47-
      reasonable jury could have found the accused guilty beyond a reasonable
      doubt.

United States v. McClellon, 578 F.3d 846, 854 (8th Cir. 2009) (internal quotations,
alteration, and citations omitted).

      In support of his sufficiency argument on Counts 1 and 2, Eye first attacks
Rios's credibility. He points out that she pleaded guilty to lying to the FBI in
connection with the investigation, which was directly related to her perjury before the
grand jury. Also, he notes that she provided different versions of events to the FBI.
According to Eye, by the time that Rios testified at trial, her version of events
conveniently conformed to the government's theory of the case.

        "The credibility of a witness is for the jury to decide, and any questions
regarding the credibility of [a witness] must be resolved in favor of the jury's verdict."
United States v. Papakee, 573 F.3d 569, 575 (8th Cir. 2009). We will not disturb the
jury's decision to credit Rios's version of events. According to her testimony, she was
with defendants at all times during the commission of the crimes charged. She
testified that they drove down the alley between 8th and 9th Streets and that when they
reached the end of the alley, Eye fired at McCay with Sandstrom's gun. And, apart
from Rios's testimony, another witness testified to hearing gunshots as he was entering
a restaurant around 6:00 a.m., which was located no more than 80 feet from the
intersection of 9th Street and Spruce Avenue. Also, Sandstrom's sister testified that
Rios said, in a conversation between the witness, defendants, and Rios, that they
needed to "finish [McCay] off" after Eye shot him the first time.

      Eye next attacks Rios's testimony as incredible as a matter of law, arguing that
even if a shooting occurred at 9th Street and Spruce Avenue, the victim was not
McCay, contrary to Rios's testimony, because McCay could not have been the victim
of both the Spruce shooting and Brighton shooting because of the distance between


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the two shootings. According to Eye, McCay could not travel from one intersection
to the other in the requisite time. In support of his argument, Eye cites an FBI agent's
testimony that the distance from the alley near Spruce to the Brighton intersection is
four-tenths of a mile, which is 704 yards or about seven football fields. According to
Eye, to believe that McCay had just been shot at about one-half mile back up the street
and was at the corner of Brighton Avenue calmly walking down the street, all before
Rios, Sandstrom, and Eye arrived there in their same automobile driving on empty
streets at around 6:00 a.m. frantically looking for McCay, is a physical impossibility.

        "Credibility challenges are for the jury, and the test for rejecting evidence as
incredible is extraordinarily stringent and is often said to bar reliance only on
testimony asserting facts that are physically impossible." United States v.
Jenkins-Watts, 574 F.3d 950, 963 (8th Cir. 2009) (internal quotations, alteration, and
citations omitted).

       Rios's testimony was not incredible as a matter of law. When asked whether she
had a front view of McCay on 9th Street and Spruce Avenue and in what direction she
was looking at him, Rios replied, "His face." And, the jury heard testimony that
McCay often walked to his place of work, which was about six to eight blocks from
the corner of 9th Street and Brighton Avenue; he usually arrived at work between 6
and 6:30 a.m.

       But the heart of Eye's argument is his contention that because the shootings
took place two minutes apart, it was physically impossible for McCay to walk four-
tenths of a mile from Spruce Avenue to Brighton Avenue. At trial, when asked
whether "[a]ll this occurred then from the initial incident back up at the 9th and Spruce
location, just a matter of less than a couple of minutes," Rios replied, "That's correct."
However, the government also presented evidence that could support a finding that
the shootings took place more than "a couple of minutes" apart. The jury heard
testimony that the shots were fired at 9th Street and Spruce Avenue around 6:00 a.m.

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The 911 call following the shooting at 8th Street and Brighton Avenue was made at
6:12 a.m., and the caller testified that he made the call approximately one minute after
hearing the shots fired. Thus, the jury could have concluded that the shootings
occurred approximately ten minutes apart, given the time of the 911 phone call with
regard to the second shooting. The jury could properly credit Rios's testimony in other
respects, while declining to accept her testimony that the shootings occurred "a couple
of minutes" apart. See United States v. Close, 518 F.3d 617, 620 (8th Cir. 2008) ("A
jury is free to believe or reject a witness's testimony in part or in whole.").

      We hold that sufficient evidence exists to support Eye's convictions on Counts
1 and 2.

                                III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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