                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3520
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Gregory Allen Sparkman,                  *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 10, 2007
                                 Filed: September 6, 2007
                                  ___________

Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
                        ___________

COLLOTON, Circuit Judge.

      A jury convicted Gregory Sparkman of fifteen counts related to a scheme to
defraud his business’s insurer by burning an office building and two vehicles. On
appeal, Sparkman challenges various rulings of the district court1 during the trial. We
affirm.




      1
        The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
                                           I.

      Sparkman and Tom Wilson co-owned West Park Motors, Inc., a pre-owned
vehicle dealership in Cape Girardeau, Missouri. In the mid-1990s, Sparkman and
Wilson leased a site for the dealership and built an office building there. They insured
the value of the office, the office’s contents, and their unsold vehicles with Safeco
Property and Casualty Insurance Companies.

       On the night of December 12, 2000, the West Park Motors office was destroyed
by fire. Two unsold vehicles were also driven off the lot and then burned near a rock
quarry. Both police and insurance investigators concluded that these fires had been
set intentionally but did not identify a perpetrator. When questioned by investigators
about his whereabouts at time of the fires, Sparkman claimed that he had been with
Scott Smith, an employee of another business that Sparkman owned, at Smith’s
workshop. Safeco eventually reimbursed West Park Motors for its losses, but
Sparkman and Wilson chose not to reopen the business.

       In 2003, Smith pled guilty to manufacturing methamphetamine. Shortly after
he was sentenced, Smith was interviewed by Special Agent David Diveley of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). According to
Diveley’s report, Smith told Diveley that on December 12, 2000, Sparkman had asked
him to move two unsold vehicles off the West Park Motors lot. While they were
moving the vehicles, Sparkman left Smith in a vehicle and walked away in the
direction the West Park Motors office carrying a gallon-sized container. He returned
ten minutes later. After Smith and Sparkman drove the vehicles away from the
dealership, Sparkman set them on fire. They then returned to Smith’s workshop,
where they turned on a police scanner and listened as the fire department was
dispatched to put out the fires.




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       After the government obtained this information from Smith, a grand jury
charged Sparkman with one count of maliciously damaging and destroying property
by means of fire, in violation of 18 U.S.C. § 844(i), one count of using fire to commit
mail fraud, in violation of 18 U.S.C. § 844(h)(1), and thirteen counts of mail fraud
under 18 U.S.C. § 1341. A jury convicted Sparkman of all fifteen counts.

                                           II.

                                           A.

       Sparkman first argues that the district court violated his right to due process and
compulsory process by refusing to compel testimony from James Furr or to continue
the trial until Furr could appear. Furr was a long-time friend of Smith’s and had
manufactured methamphetamine with him. Furr, like Smith, had been interviewed by
ATF Special Agent Diveley. According to Diveley’s summary of this interview, Furr
stated that Smith had told him that he had burned the West Park Motors office himself
at Sparkman’s request. Sparkman contends that this statement shows that Smith lied
when he suggested at trial that Sparkman had burned the office.

       Furr was incarcerated at the time of the trial, and Sparkman requested of the
government shortly before trial that Furr be produced to testify as a witness for the
defense. The United States Marshals Service informed the parties that there was
insufficient time to move Furr from prison to the location of the trial. At that point,
Sparkman argues, the court should have ordered the Marshals Service to produce Furr
more promptly, or continued the trial until Furr could be produced.

      We typically review constitutional questions de novo, e.g., United States v.
Lopez-Zepeda, 466 F.3d 651, 655 (8th Cir. 2006), and other circuits have reviewed
compulsory process claims under that standard. E.g., United States v. Bahamonde,
445 F.3d 1225, 1228 (9th Cir. 2006). On some occasions, however, it appears that our

                                           -3-
court has applied an abuse of discretion standard to such a claim. United States v.
Youngman, 481 F.3d 1015, 1017 (8th Cir. 2007); United States v. DeCoteau, 648 F.2d
1191, 1192 (8th Cir. 1981) (per curiam). We conclude that the district court’s
decision in this case should be affirmed under either standard of review.

       When reviewing compulsory process claims, we are guided by the Supreme
Court’s opinion in Taylor v. Illinois, 484 U.S. 400 (1988). Taylor established that a
defendant does not have an absolute right to compel the testimony of witnesses in his
favor. Id. at 414. Rather, the defendant’s right to compel testimony must be weighed
against “countervailing public interests,” including the “integrity of the adversary
process, which depends both on the presentation of reliable evidence and the rejection
of unreliable evidence, the interest in the fair and efficient administration of justice,
and the potential prejudice to the truth-determining function of the trial process.” Id.
at 414-15. See also United States v. Nelson-Rodriguez, 319 F.3d 12, 36 (1st Cir.
2003); Tyson v. Trigg, 50 F.3d 436, 444-45 (7th Cir. 1995); United States v. Johnson,
970 F.2d 907, 911 (D.C. Cir. 1992); Horton v. Zant, 941 F.2d 1449, 1466 (11th Cir.
1991). In particular, we consider, inter alia, the timeliness of the defendant’s request
for the testimony and the importance of the testimony to the defendant’s case. See
Taylor, 484 U.S. at 415 (holding that a court may exclude a witness’s testimony if the
defendant willfully delays requesting the witness’s appearance); United States v.
DeCoteau, 648 F.2d 1191, 1192 (8th Cir. 1981) (per curiam) (affirming a court’s
refusal to compel the testimony of witnesses when the defendant’s request for the
testimony was untimely); United States v. Turning Bear, 357 F.3d 730, 733 (8th Cir.
2004) (stating that a defendant claiming violation of the Compulsory Process Clause
must show that a witness’s testimony is material and favorable).

       We think it is significant here that Sparkman did not request Furr’s appearance
until late in the pre-trial process. His counsel asked the prosecutor to arrange for
Furr’s appearance no more than seven business days before trial (although the request
should have been directed to the United States Marshals Service), and the prosecutor

                                          -4-
communicated that request to the Marshals Service five business days before trial. As
a result of this short notice, the Marshals Service was unable to transfer Furr from a
prison in Colorado to the courtroom in Missouri in time for him to appear during the
defense portion of the trial, as it was scheduled. Sparkman’s counsel was aware of
Furr’s imprisonment and thus could have anticipated that transporting him to trial
would require significant lead time. The court has a substantial interest in the efficient
administration of justice, and we would not lightly conclude that the court was
required to continue a trial due to a timing problem that was largely of the defendant’s
own making.

       In this case, the absence of Furr’s expected testimony does not undermine our
confidence in the verdict. If Furr’s testimony is believed, Smith gave two conflicting
accounts about the events of December 12. In the version he gave to Agent Diveley
and at trial, Smith suggested that Sparkman burned the office while Smith waited in
a vehicle nearby. According to the account allegedly given to Furr, Smith said that
he personally burned the office on Sparkman’s behalf. Either account, however,
inculpates Sparkman in the charged offenses. Thus, even if Furr’s testimony could
show that Smith changed the details of his account, it would also show that Smith was
consistent regarding Sparkman’s guilt. In view of the modest benefit that Furr’s
testimony might have offered, we believe the district court correctly ruled that the
countervailing public interests in the efficient administration of justice were sufficient
reason to deny the motion for a continuance of the trial.

                                           B.

      Sparkman also appeals several of the district court’s evidentiary rulings. We
review these rulings for abuse of discretion. United States v. Kenyon, 481 F.3d 1054,
1060 (8th Cir. 2007).




                                           -5-
       Sparkman argues that the court erred by excluding as hearsay Agent Diveley’s
report of his interview with Furr concerning statements that Smith allegedly made to
Furr. The report contains statements from three speakers. Smith made his alleged
statements to Furr, who then repeated them to Diveley, who then summarized them
in his report. Diveley’s summary was relevant to Smith’s credibility only if Furr’s
account of his conversation with Smith was believed. Furr’s statements were thus
“offered in evidence to prove the truth of the matter asserted,” Fed. R. Evid. 801(c),
and the report contains hearsay upon hearsay. For such a report to be admissible, each
layer of hearsay must be admissible under the rules of evidence. See United States v.
Turner, 189 F.3d 712, 719-20 (8th Cir. 1999). Sparkman, however, has not
demonstrated that Furr’s statements would fall into any exception to the hearsay rules,
and the district court thus properly excluded Diveley’s report of the interview.

       Sparkman also appeals the court’s exclusion of Diveley’s report of his interview
with Smith. Sparkman argues that such reports are admissible as business records
under Federal Rule of Evidence 803(6). Other circuits differ on whether police
reports may be admitted against the government under Rule 803(6), compare United
States v. Pena-Gutierrez, 222 F.3d 1080, 1086-87 (9th Cir. 2000) with United States
v. Smith, 521 F.2d 957, 967-68 n.24 (D.C. Cir. 1975), but we need not resolve that
issue here. Even if the report was admissible, its exclusion was harmless. During
cross examination and redirect examination, Smith was questioned at length and in
detail regarding the inconsistencies between his testimony at trial and the statement
that he gave to Diveley. Smith acknowledged that Diveley’s summary of their
conversation differed from his testimony, and testified that Diveley had made minor
errors when summarizing it. Thus, because the relevant portions of Diveley’s report
were discussed at trial and were not disputed, the written report itself would have been
largely cumulative. We are confident that the admission of this report, even if
required by the rules of evidence, would not have influenced the verdict substantially.
See Kotteakos v. United States, 328 U.S. 750, 764-65 (1946).



                                          -6-
       Sparkman next argues that the court erred by allowing Smith to testify that a
couple of months before December 12, 2000, Sparkman told him that he had run an
unsold truck into a pond and then reported it stolen to collect insurance on it. When
a defendant is charged with insurance fraud, prior instances of insurance fraud may
be admitted under Rule 404(b) to show the defendant’s intent to commit the charged
fraud if the prior fraud is similar to and not too remote in time from the charged fraud.
United States v. Fitterer, 710 F.2d 1328, 1332 (8th Cir. 1983); United States v.
Calvert, 523 F.2d 895, 908 (8th Cir. 1975). Here, both the prior offense and the
charged offense involved Sparkman’s destruction of vehicles to collect insurance and
occurred within a few months of each other. Smith’s testimony was thus admissible
under 404(b) and significantly probative, and the district court did not abuse its
discretion by admitting it.

       Sparkman contends, however, that even if Smith’s “other act” testimony itself
was generally admissible, the district court erred in this case because it failed to
accompany the evidence with a proper limiting instruction to the jury. The district
court gave the following instruction:

      [Y]ou are about to hear evidence that the defendant previously
      committed an act similar to the ones charged in this case. You may use
      this evidence to help you decide whether the similarity between the acts
      previously committed and the ones charged show a common scheme,
      pattern, or plan between the prior act and the present offenses.
      Remember, however, that the mere fact that the defendant may have
      committed a similar act in the past is not evidence that he committed
      such acts in this case. The defendant is on trial for the crimes charged
      and for those crimes only. You may not convict a person simply because
      you believe he may have committed some acts, even bad acts, in the past.




                                          -7-
       Sparkman claims that this instruction was flawed, and that the district court was
required to give model instruction 2.08 of the Eighth Circuit Manual of Model Jury
Instructions (2003). Sparkman argues that the district court’s instruction lacks two
essential provisions of the model instruction. First, the model instruction informs that
jury that before considering “other act” evidence, it must “unanimously find beyond
a reasonable doubt, based on the rest of the evidence introduced, that the defendant
carried out the acts involved in the crime charged in the indictment.” Eighth Circuit
Manual of Model Jury Instructions 2.08 (2003). Second, the model instruction states
that the “other act” evidence “must be proven by a preponderance of the evidence; that
is, you must find that the evidence is more likely true than not true.” Id.

       At trial, Sparkman made only a cursory objection to the limiting instruction.
He did not alert the district court to the purported flaws in the instruction given or
propose an alternative instruction. Under our precedents, therefore, we review the
instruction only for plain error. See United States v. Looking Cloud, 419 F.3d 781,
788 (8th Cir. 2005); United States v. Johnson, 516 F.2d 209, 213 (8th Cir. 1975). In
any event, we conclude that the instruction was not erroneous. The model jury
instructions are available for use by the district courts, but they are not binding.
Turner, 189 F.3d at 722. A district court may properly decide not to use them as long
as the instruction given accurately states the law, and we think the court’s limiting
instruction in this case was proper.

      The model instruction does suggest that a jury be instructed to refrain from
considering “other acts” evidence unless and until it has determined beyond a
reasonable doubt that the defendant has committed the acts charged in the indictment.
The evident purpose of such an instruction is to ensure that the jury does not use
uncharged acts improperly as propensity evidence to conclude that the defendant
committed the charged acts. But the model instruction is not the only permissible
means to convey that message to a jury. Here, the jury was told that the “other acts”
evidence was admitted to show Sparkman’s “scheme, pattern, or plan,” and that “the

                                          -8-
mere fact that the defendant may have committed a similar act in the past is not
evidence that he committed such acts in this case.” (T. Tr. vol. 3, at 218). This
instruction was adequate to inform the jury of the limited permissible use of the
evidence of prior bad acts.

       Nor do we think the court was required to give a specific instruction identifying
the applicable standard of proof as a preponderance of the evidence. Before evidence
is admissible under Rule 404, there must be sufficient evidence for a jury to find by
a preponderance of the evidence that the defendant committed the other alleged act.
Huddleston v. United States, 485 U.S. 681, 685 (1988). So long as the jury
understands that it must actually find that the defendant did commit the other act
before that evidence may be given weight, we see no reason why the jury must be told
specifically to apply a preponderance of the evidence standard. United States v.
Hudson, 884 F.2d 1016, 1021 (7th Cir. 1989); United States v. Sliker, 751 F.2d 477,
500 (2d Cir. 1984). The preponderance standard is the lowest standard of proof
available in the law, so there is no likelihood that the defendant could be prejudiced
by the application of an unduly lenient standard of proof. The jury was informed that
it was the ultimate judge as to all factual issues, and it undoubtedly understood that
there was a dispute concerning the credibility of Smith’s testimony. We see no
reasonable likelihood that the instruction given by the court in this case led the jury
to believe that it could consider Sparkman’s prior acts without finding that Sparkman
actually committed the prior acts. Accordingly, we discern no error.

                                   *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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