                              ___________

                              No. 95-1874
                              ___________

United States,                     *
                                   *
          Appellant,               *
                                   *
     v.                            *   Appeal from the United States
                                   *   District Court for the
John Charles Flaherty,             *   District of Minnesota
                                   *
          Appellee.                *
                              ___________

                       Submitted:   November 16, 1995

                           Filed:   February 27, 1996
                              ___________

Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                           ___________


MURPHY, Circuit Judge.


     John Charles Flaherty appeals his conviction on two counts of
aiding and abetting arson for which he received concurrent 37 month
sentences and three years supervised release. On appeal he argues
that the district court1 erred by admitting a nontestifying
codefendant's statements in violation of Bruton v. United States,
391 U.S. 123 (1968), denying his motion for severance, and
excluding evidence tending to show that a third party might have
set the fires. He also claims that the evidence was insufficient
to support the jury's verdict. We affirm.


     Eddy's Hamburger and Malt Shop in Long Lake, which was owned


     1
      The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota.
and operated by Flaherty, was destroyed by two deliberately set
fires that occurred approximately two weeks apart. On December 31,
1988, the fire department responded to put out a fire at the
restaurant.   An investigation found multiple points of origin,
evidence of a liquid accelerant, and the remains of "trailers"
consisting of commercial restroom roller towels that had been
carefully draped from one fire location to the other. There was no
evidence of forced entry, and all doors had been locked. The fire
marshal investigator concluded that the fire had been set
intentionally. On January 12, 1989 a second fire broke out at the
restaurant. That investigation uncovered evidence that flammable
liquids had been poured throughout the restaurant. There was no
sign of forced entry. The fire marshal determined that this fire
had also been deliberately set.


     After an extensive investigation, Flaherty and Gregory Lee
Melina were indicted by a grand jury and each charged with two
counts of aiding and abetting arson, in violation of 18 U.S.C. §§
844(i) and 2, and one count of conspiracy to commit arson, in
violation of § 18 U.S.C. § 844(i). Both pleaded not guilty and
went to trial before a jury.     Flaherty was convicted for both
fires, but Melina was convicted only of involvement in the second,
and his appeal is proceeding separately.


     The evidence at trial suggested that Flaherty was in severe
financial trouble and set the fires to collect insurance proceeds,
which he promised to share with Melina.     Flaherty had incurred
significant business and personal debts. The restaurant, which was
his only source of income, was not generating a cash flow
sufficient to cover expenses. He had not paid the taxes withheld
from his employees' wages, and he owed the state significant
amounts for unemployment compensation.    In addition, his second
business venture, the development of a teen nightclub across the
street from Eddy's, had failed. In the weeks prior to the first
fire, Flaherty learned that significant expenses would have to be

                                2
paid before the building could open and that the city council had
denied his permit applications.


     The evidence also suggested that Flaherty had an opportunity
to set or aid in setting the fires. He closed the restaurant early
on the day of the first fire. He entertained guests at his home in
the evening, but there was evidence to show that he left his guests
for nearly two hours shortly before the fire was discovered. The
night of the second fire Flaherty had an alibi; he was in bed
recovering from hernia repair surgery that he had undergone that
afternoon. The timing of the surgery was shown to be suspicious,
however. Flaherty had told others that his doctor told him to have
the operation on that day. The doctor testified at trial that he
had told Flaherty the surgery could be scheduled at will and that
Flaherty had called on January 10 to schedule the surgery for two
days later, the day of the fire.


     There was physical evidence to link Flaherty to the fire
scene. Analysis of the toweling material used as a trailer in the
first fire revealed that it had been soaked with a medium petroleum
distillate similar to mineral spirits. Mineral spirits and burned
scraps of similar toweling were found inside a locked area of the
building that had been leased for the teen nightclub.          Only
Flaherty and Tom Gestach, his business partner in the nightclub,
had keys.    The police also recovered a half-roll of similar
toweling from the nightclub.     After the second fire, Flaherty
decided to give up on the nightclub venture. When he and Gestach
were removing contents from the building, they uncovered a pile of
toweling that had been ripped into strips similar to the trailers.
Flaherty attempted to conceal the existence of these toweling
strips. He placed them in a bag and convinced Gestach to carry it
to a dumpster at a nearby Burger King. He told Gestach that he was
being framed.


     The jury also heard evidence that suggested Flaherty may have

                                3
attempted to divert suspicion away from himself by falsely
reporting burglaries and mysterious threats over a period of time
before the fires were set. He reported a string of burglaries at
the restaurant, but police became suspicious because there was no
sign of forced entry and no damage done.        He also reported
receiving a threatening phone call about his involvement in the
teen night club, but police later found several scripts for the
call on the nightclub premises and a diary entry by Flaherty
identifying the call as a "phony harassment call."


     There was also evidence linking Flaherty with Melina. The
parties stipulated that the two knew each other, having met in the
late 1970's or early 1980's. Liz Sorenson, Flaherty's friend and
an employee at Eddy's, testified that Flaherty had used her
telephone several times to contact someone named Greg and that she
had received telephone calls for Flaherty from someone who
identified himself as Greg. She also testified that during the
time between the fires she had accompanied Flaherty when he was
looking for someone matching Melina's description. In addition, a
chalkboard found in Melina's basement had traces of an accurate
drawing of Eddy's.


     On appeal Flaherty argues that his Sixth Amendment right to
confrontation was violated by the admission of certain out-of-court
statements made by Melina, who did not testify and thus was not
available for cross examination.        Flaherty claims that the
statements incriminated him in violation of Bruton v. United
States, 391 U.S. 123 (1968).


     Three separate statements were involved. First, statements
made by Melina at a deposition in a related civil case were
admitted into evidence. They concerned his contacts with Flaherty.
Hal Shillingstad, the attorney who took the deposition, testified
that Melina had told him "I ain't seen Johnny since 1980, and I've
seen him one time back maybe in '84. That was the last time I seen

                                4
him," and "when I knew him, he drove a white, I think it was a
Cadillac, white Cadillac or something . . .. "        (T. 918-20).
Flaherty argues that this is incriminating if combined with the
testimony of Flaherty's wife that they had owned a white Cadillac
between September 1988 and March or April 1989. He argues that the
two pieces of evidence show that he and Melina had seen each other
near the time of the fire. Second, Heather Westergaard testified
about threats made by Melina during a telephone conversation in
April 1994. After she inquired about his connection to a man named
John, Melina "told me if I didn't butt out of his business and stop
asking questions, he was going to come and kick my fucking ass, and
he called me a stupid bitch and a cunt. He was going to kick my
ass and my boyfriend's ass." (T. 931). Finally, an agent from the
Bureau of Alcohol, Tobacco and Firearms (ATF) testified that Melina
told him that he had drawn a diagram found on the chalkboard, but
denied that it was of Eddy's.      Instead, Melina "said that the
drawing on the board was of a bank in Mound, Minnesota" which "he
and another individual had planned to rob." (T. 974).


     Although Flaherty raised a Bruton objection to one of the
statements at trial, he did not follow through to ensure the issue
was preserved.   When he objected to the admission of Melina's
deposition statement, the government argued that that testimony
contained only false exculpatory statements that did not directly
implicate either party. The district court agreed and overruled
the Bruton objection, but then asked the parties to confer about
the proffered evidence.     Flaherty agreed to the use of the
statements now challenged, (Tr. 900-01), and did not object at the
time they were introduced. (Tr. 918-20). When the evidence was
brought in, the jury was instructed that "the testimony . . . with
respect to Mr. Melina's testimony is admissible only as to him or
against him and is not to be used with respect to any charges




                                5
against Mr. Flaherty."2     Flaherty did not raise any Bruton
objection to the statements described in the testimony of
Westergaard and the ATF agent, but he did object to the statements
as hearsay.


     At the close of all the evidence, the district court dismissed
the conspiracy charge on the basis of insufficient evidence. At
that time, Flaherty was given an opportunity to raise any Bruton
concerns, but chose not to do so. His counsel stated that he did
not believe any admitted evidence required a mistrial and that he
believed an instruction directing the jury to consider Melina's
statements only as to himself would be sufficient.3 Although some
evidence had been admitted pending proof of a conspiracy, that
evidence involved statements made by Flaherty.           The three
statements now objected to on Bruton grounds were made after the
conclusion of the charged conspiracy and were admitted at trial
with cautionary instructions, but they were not received
conditionally. Flaherty did not mention any Bruton problem, and
the court gave him the relief he requested. He did not object to
the content of the jury instructions given at the close of the



     2
      Melina's lawyer requested that the instruction be given. A
deposition statement by Flaherty was admitted at the same time,
and Melina's lawyer raised a Bruton objection related to it. He
requested that a limiting instruction be given about the
depositions of both Flaherty and Melina.
     3
      In response to the district court's inquiry about whether
dismissal of the conspiracy count would lead to a request for a
mistrial, Flaherty's lawyer replied:

     I think in this case because of the relative quanta of
     evidence that a mistrial is not appropriate, and that
     the problem can be remedied by sufficient cautionary
     instructions, which I believe is the first time I've
     ever said that in 23 years. And we are not seeking a
     mistrial. I've asked Mr. Flaherty if he is seeking a
     mistrial, and he does not want a mistrial either.

(Tr. at 1130).

                                6
trial.4 It thus appears from the record that Flaherty waived the
right to pursue a Bruton objection on appeal.


      Even assuming the issue was properly preserved for appeal,
however, we are not persuaded that any Bruton violation occurred.
A defendant's Sixth Amendment right of confrontation is violated
when a nontestifying codefendant's confession incriminates the
defendant and is introduced at their joint trial, even if the jury
is instructed to consider the confession only against the
codefendant.   Bruton, 391 U.S. at 135-136.      Bruton does not,
however, require the exclusion of all statements made by a
codefendant. If a codefendant's confession does not incriminate
the defendant on its face, but does so only when linked to
additional evidence, it may be admitted if a limiting instruction


     4
      Prior to deliberating, the jury was instructed:

     It is your duty to give separate and personal
     consideration to the case of each individual. When you
     do so, you should analyze what the evidence in the case
     shows with respect to that individual defendant,
     leaving out of consideration any evidence admitted
     solely against the other defendant.

                              * * *

     In certain circumstances evidence has been admitted
     only concerning a particular defendant or only for a
     particular purpose and not generally against both
     defendants or for all purposes.

     For the limited purpose for which this evidence has
     been received you may give it such weight as you feel
     it deserves. You may not, however, use this evidence
     for any other purpose or against any other party not
     specifically mentioned.

     In addition, statements made by a defendant out of the
     presence of the other defendant are to be considered by
     you only with regard to the defendant making the
     statement and are not to be considered by you with
     regard to the other defendant.

(Jury Instruction Tr. 102, 104-05).

                                7
is given to the jury and the defendant's name is redacted from the
confession. Richardson v. Marsh, 481 U.S. 200, 211 (1987). Bruton
does not apply at all if the codefendant's statement does not
incriminate the defendant. U.S. v. Escobar, 50 F.3d 1414, 1422
(8th Cir. 1995).


     Here, the statements made by Melina do not incriminate
Flaherty on their face, or even when linked to other evidence
received at the trial. They do not refer to the charged crimes at
all.   Melina's deposition statements, even if linked to Mrs.
Flaherty's testimony about when the couple owned the Cadillac, show
only that Melina had seen Flaherty sometime near the time of the
fire. Melina's threatening statements to Westergaard may suggest
that he did not want to answer questions about his involvement with
someone named "John," but did not implicate Flaherty in arson.
Similarly, Melina's false statement to the ATF agent that the
blackboard diagram was a bank he planned to rob, shows that Melina
was willing to lie about the diagram, but does not implicate
Flaherty. Melina's statements are evasive, false, and threatening,
but not incriminating.


     Moreover, any error in the admission of Melina's statements
was harmless. See United States v. Jones, 965 F.2d 1507, 1515 (8th
Cir.), cert. denied, 113 S. Ct. 346 (1992). If Melina's statements
are not considered, the government's evidence, including evidence
of Flaherty's motive, opportunity, connection to Melina, suspicious
behavior, and false statements, is sufficient to support Flaherty's
arson convictions.


     Flaherty also argues that his case should not have been joined
with Melina's and that the district court's denial of his motion to
sever was an abuse of discretion. He claims he was prejudiced by
the joinder because it allowed the jury to hear Melina's out-of-
court statements.    This is essentially the same as his Bruton
argument, and we reject it for similar reasons.       As explained

                                8
above, the statements that he complains of were not actually
incriminating against him and were therefore not prejudicial to his
case. See United States v. Rimell, 21 F.3d 281, 289 (8th Cir.),
cert. denied, 115 S. Ct. 453 (1994) (defendant must show joinder
resulted in "severe or compelling prejudice"). Moreover, Flaherty
does not demonstrate that the jury was unable to compartmentalize
the evidence as it related to the codefendants. See United States
v. Agofsky, 20 F.3d 866, 871 (8th Cir.), cert. denied, 115 S. Ct.
280 (1994). The fact that the jury did not convict both defendants
of both counts is evidence of its ability to analyze and
distinguish the evidence as to each. In this case the limiting
instructions were sufficient to cure any risk of prejudice. Zafiro
v. United States, 506 U.S. 534, 113 S. Ct. 933, 937 (1993).    The
district court did not abuse its discretion.


     Flaherty also argues that he was deprived of his rights to
present a defense and to due process because the district court
excluded evidence concerning the possible culpability of a third
party. Flaherty claimed that T.E.H., a high school student who was
a former Eddy's employee and a friend of Flaherty's son, Brady, had
set a fire in Brady's school locker on October 7, 1988. T.E.H. was
charged with arson in state court, but the charge was dismissed.
During her testimony at trial, Mrs. Flaherty mentioned that someone
had started a fire in Brady's locker in October 1988, but she did
not attempt to identify the culprit.


       Near the end of Flaherty's trial, his lawyer attempted to
introduce a copy of the dismissed state court complaint to prove
that T.E.H. set the locker fire. He hoped to create an inference
that T.E.H. was responsible for the fires at Eddy's, and he
indicated that he might be able to produce an eyewitness to the
locker fire, but he was not sure. The government objected to the
offer on the ground the evidence would be inadmissible under
Federal Rules of Evidence 404(b) and 403, and the district court


                                9
sustained the objection.5

     On appeal our task is not to substitute our judgment for that
of the district court, but instead to determine whether its
evidentiary ruling was an abuse of its discretion. King v. Ahrens,
16 F.3d 265, 270 (8th Cir. 1994). After a careful review of the
record, we conclude that the district court did not abuse its
discretion in this case.    The probative value of the proffered
evidence was slight. At the time of its ruling Flaherty's lawyer
had made only a weak offer of proof; he had only a dismissed arson
charge and was uncertain whether an eyewitness to the school fire
could be located. He had no other evidence linking T.E.H. to the
fires at Eddy's. Moreover, the fires were not started in a similar
manner. The locker fire was simply lit with a match while the fire
at Eddy's was of more sophisticated origin. We conclude that no
reversible error occurred when the court sustained the government's
Rule 403 objection.6


     Flaherty next argues that the evidence was insufficient to
prove the interstate commerce element of the offense of arson. 18
U.S.C. § 844(i) requires that the subject property was being used

     5
      The district court stated that "[t]o the extent that there
has been an offer to prove this, I am going to sustain the
government's objection to it and not allow it . . .." (Tr. 1088-
89). As the dissent points out, the court went on to elaborate
on the admissibility of the evidence under Rule 404(b), but it is
apparent from the context of the ruling that the court considered
factors pertinent to both rules. The court's colloquy with
counsel showed its concern over what proof Flaherty could
actually offer about the locker incident to make it relevant, and
the court commented that the manner in which the locker fire had
been
set was entirely different from the other fires. A district
court is not required to make explicit findings regarding its
Rule 403 balancing. King v. Ahrens, 16 F.3d 265, 269 (8th Cir.
1994).

     6
      Because of this determination, it is not necessary to
discuss Rule 404(b).

                                10
in interstate or foreign commerce. The parties agreed at trial
that the jury should be instructed that "[t]he government may meet
its burden of proving this element of the offense by demonstrating
that the gas used to heat the building was supplied from outside
the State of Minnesota," and they stipulated to the facts that
Eddy's "was heated with . . . natural gas . . . purchased from
sources outside of the State . . . of Minnesota." Flaherty did not
object to the jury instruction or raise any issue regarding the
government's proof of an interstate nexus in his motions for
judgment of acquittal.    He now asserts that the government was
required to show a substantial connection between the building and
interstate commerce, citing United States v. Lopez, 115 S. Ct. 1624
(1995).


     Flaherty's failure to raise the interstate commerce issue in
the district court resulted in a waiver of the issue, but the jury
instruction given at trial mirrors the one upheld in United States
v. Ryan, 41 F.3d 361 (8th Cir. 1994) (en banc), cert. denied, 115
S. Ct. 1793 (1995). Flaherty stipulated to facts sufficient to
meet the burden described in Ryan and is bound by that stipulation.
Based on our review of the record we find no clear error. United
States v. Jennings, 12 F.3d 836, 838 (8th Cir. 1994); United States
v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc).


     Even if the issue had not been waived, we are not persuaded
that Lopez would apply. In that case the Supreme Court held that
Congress had exceeded its authority under the Commerce Clause when
it enacted the Gun-Free School Act, 18 U.S.C. §922(q)(1)(A), which
made it a federal offense knowingly to possess a firearm in a
school zone. That statute, by its terms, had "nothing to do with
commerce or any sort of economic enterprise," nor did it contain a
requirement that the possession be connected in any way to
interstate commerce.   Lopez, 115 S. Ct. at 1630-31.     The arson
statute at issue here, however, criminalizes the damage or
destruction of business property and contains a jurisdictional

                                11
element requiring proof that the affected property is "used in
interstate or foreign commerce."   The Lopez decision did not
address the amount of evidence required to prove an explicit
jurisdictional element of an offense and does not control this
case.


     Finally, Flaherty asserts that the evidence is insufficient to
support the jury's verdict because it does not show that Flaherty
started the fires or aided and abetted Melina. We have reviewed
the evidence submitted at trial and conclude that it is sufficient
to support the verdict.


     For the stated reasons the judgment of conviction is affirmed,
and the motion for release pending appeal is dismissed as moot.


JOHN R. GIBSON, Circuit Judge, dissenting.


     I respectfully dissent. I think the district court abused its
discretion in excluding evidence of the fire set by T.E.H. The
court today concludes that the district court excluded the evidence
of the fire set by T.E.H. under Federal Rule of Evidence 403
because the probative value of the evidence was slight. Although
the government objected to the evidence based on Federal Rules of
Evidence 404(b) and 403, the district court's ruling could not be
more straightforward.   The district court excluded the evidence
under Rule 404(b), not under 403. The district court stated:


     I am going to sustain the Government's objection to it
     and not allow it, concluding that it is evidence of other
     crimes and its only purpose in being put forward,
     notwithstanding the representations of counsel, is to
     prove the character of the individual involved in order
     to show action and conformity therewith. I don't think
     it fits any of the other exceptions of intent,
     preparation, plan, knowledge, et cetera, because I think
     the fires are entirely different. . . .



                                12
(T. at 1089).


     In excluding the evidence under Rule 404(b), the district
court applied Rule 404(b) too broadly.        The court failed to
recognize any difference between admitting similar acts evidence
for offensive and defensive purposes.     Specifically, the court
ignored the fact that the defendant offered evidence of the similar
acts of a third party. "[T]he standard of admissibility when a
criminal defendant offers similar acts evidence as a shield need
not be as restrictive as when a prosecutor uses such evidence as a
sword." United States v. Aboumoussallem, 726 F.2d 906, 911 (2d
Cir. 1984); accord United States v. Cohen, 888 F.2d 770, 777 (11th
Cir. 1989).    Several courts have recognized this distinction,
concluding that evidence of a third person's similar acts is not
excluded under Rule 404(b) when the defendant is seeking to admit
the evidence to prove some fact relevant to his defense.       See,
e.g., United States v. Blum, 62 F.3d 63, 67-68 (2d Cir. 1995)
(court abused its discretion in excluding evidence of witness'
personal motive to fabricate evidence); Cohen, 888 F.2d at 775-77
(court erred in excluding evidence that witness had been involved
in similar scheme); Aboumoussallem, 726 F.2d at 912 (evidence that
defendant's cousins duped another person into transporting hashish
not inadmissible under Rule 404(b)).     This result is justified
because Rule 404(b) typically applies to exclude evidence that the
prosecution seeks to introduce to show the accused committed a
crime on another occasion.       Fed. R. Evid. 404(b), advisory
committee's note. The reason for excluding prior crimes evidence
is the danger that the jury will use the evidence of a prior crime
as a basis for inferring that the defendant committed the charged
crime. United States v. DeAngelo, 13 F.3d 1228, 1232 (8th Cir.),
cert. denied, 114 S. Ct. 2717 (1994). This justification is not
implicated when, as here, the defendant offers the evidence to
prove some fact relevant to his defense, namely, that someone else
may have committed the crime. Flaherty attempted to use evidence
of T.E.H.'s prior crime to support his defense theory. Thus, there

                                13
was no danger that the jury would make the improper inference
contemplated by Rule 404(b). See Huddleston v. United States, 485
U.S. 681 (1988) (discussing admission of similar act evidence).



     The court must do a pas de chat to evade the district court's
misapplication of Rule 404(b), saying that the T.E.H. evidence is
of little probative value because Flaherty made a weak offer of
proof.   The court states that Flaherty's only evidence of the
school locker fire was a dismissed arson charge and a possible
eyewitness to the fire. The court also finds the evidence lacking
because the fires were not similar.


     Flaherty offered, however, a certified copy of the complaint
charging T.E.W. with arson in the first degree arising out of the
school locker fire as well as the Hennepin County attorney's file
about the incident. This file contains a police report, including
witness' statements, a pretrial evaluation, and a case disposition
summary.   These documents show that T.E.H.'s arson charge was
dismissed in exchange for T.E.H.'s plea of guilty to the lesser
included offense of burglary in the second degree.7 That the arson
charge was ultimately dismissed has no factual or legal
significance in this case. See Dowling v. United States, 493 U.S.
342 (1990) (admitting testimony about an alleged crime that the
defendant had been acquitted of committing); United States v.
Riley, 684 F.2d 542, 546 (8th Cir. 1982), cert. denied, 459 U.S.
1111 (1983).    Moreover, that the restaurant fires were more
sophisticated than the school locker fire does not bolster the
court's ruling today. Flaherty did not offer the evidence of the
locker fire to prove T.E.H.'s character or that the fires were
similar acts.   See Fed. R. Evid. 404(b).   Flaherty offered the

     7
      Of interest is the fact that T.E.H.'s pretrial evaluation
and case disposition documents are dated December 26, 1988, and
January 17, 1989. The fires at the restaurant were set December
31, 1988, and January 12, 1989.

                               14
evidence to prove the possibility that another person set the fire.
See United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir. 1991)
(defendant entitled to introduce evidence that someone else
committed the crime); Blum, 62 F.3d at 68 (motive of third party to
commit crime is recognized exception to Rule 404(b)). Besides the
locker fire, there was other evidence supporting Flaherty's theory.
There was evidence that T.E.H. was fired from his job at the
restaurant and had a long-standing dispute with Flaherty's son,
Brady. T.E.H. went to school with Brady, and had several physical
and verbal confrontations with Brady. There was evidence that in
addition to threatening Brady, T.E.H. had kicked Brady in the ribs.


     As the district court did not base its ruling on Rule 403, it
goes without saying that it did not perform the balancing test
required by that rule. Although the court today rules the evidence
of "slight" probative value, the court fails to balance the value
of the evidence with the danger of unfair prejudice as required by
Rule 403, if indeed an appellate court could perform this fact-
finding function.    There has been no articulation of "unfair
prejudice." I do not see how the T.E.H. evidence "would influence
the jury to decide the case on an improper basis." King v. Ahrens,
16 F.3d 265, 269 (8th Cir. 1994) (internal citation omitted). In
my view, Flaherty should have been able to introduce this evidence
to support his defense that someone else started the fire.


     The exclusion of the T.E.H. evidence was prejudicial error.
See Michigan v. Lucas, 111 S. Ct. 1743, 1747 (1991); United States
v. Bear Stops, 997 F.2d 451, 454-57 (8th Cir. 1993).       I would
reverse and remand for a new trial.


     A true copy.




                                15
Attest:


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




                     16
