Defendants Chris Veltmann and Carl Veltmann were convicted of matricide and uxoricide respectively.
Elizabeth Veltmann ("Elizabeth") died the evening of January 7, 1990 during a fire in the home she shared with her husband, Carl Veltmann ("Carl"). The couple had just returned from a week-long honeymoon cruise with Elizabeth's son, Christopher Veltmann ("Chris"), and his new bride.
The fire was caused by arson; the crux of the case is the identity of the arsonist(s). The government theorized that Carl and Chris set fire to the house with the knowledge that Elizabeth was inside and with intent to recover proceeds under various insurance policies.
I. The Fire
On January 7, 1990, at 9:41 p.m., a neighbor called 911 after hearing an alarm and seeing smoke and flames coming from a second floor window of the Veltmann's three story residence. Firefighters broke into the house through the locked front door and found Elizabeth unconscious in the third floor master bedroom. She could not be revived. No one else was found in the home.
The investigation revealed the fire had three separate points of origin. The majority of damage was caused by a fire in the first floor foyer. This fire was started with newspapers and possibly a small amount of accelerant. The second fire was in the garage and the third in the dumbwaiter in the second floor kitchen. These two fires essentially "went nowhere." The oven was turned onto the "clean" position, and a firefighter reported that the burners were glowing. Experts' estimates of the burn time
None of the ten smoke detectors in the residence were sounding when firefighters arrived. The government contended that the smoke detectors were "disarmed" before the fire was set.
There was contradictory evidence about the home protection system. The Veltmanns were convinced they were protected by a combined burglar/fire alarm system. Government witnesses, however, testified that the alarm system did not monitor for fires at all. The system, when properly installed, had a "line seizure" mechanism. When such a device is triggered it "seizes" the phone lines and automatically calls the monitoring service. The government argued that the alarm was deactivated before the fire because it was "parallel wired" which prevented the system from seizing the phone line if any telephone in the house was off the hook.
The government emphasized that Elizabeth was locked inside the house with no means of escape.
There was no forced entry into the house other than that made by firefighters. Although numerous people had access to keys, there were apparently no suspects other than Carl and Chris who had both access to the house and knowledge of the home protection systems.
II. Elizabeth Veltmann's State-of-Mind
The defense's case rested on proof that Elizabeth was suicidal. Elizabeth's autopsy revealed that her blood-alcohol level at death was .149, with a .33 level of Dalmane, a prescription sedative, in her system. Carbon monoxide test samples yielded a 73 to 75 percent result evidencing the cause of death as acute carbon monoxide intoxication from the inhalation of smoke and gases. The physician testified he did not consider suicide
Contradictions permeate evidence of Elizabeth's physical and psychological condition. Elizabeth and Carl were married for twenty-five years, were business partners, and were described by a number of witnesses as a loving and devoted couple. Elizabeth was happy about Chris' recent marriage and excited about the honeymoon cruise. But numerous indicators point to Elizabeth's deep distress over her medical and financial problems.
Elizabeth suffered from a variety of physical maladies.
In addition to being chemically dependent, Elizabeth was deeply troubled about what seemed to be impending financial ruin. She needed money for drugs and was trying to keep her dependency a secret. The Veltmann's corporation filed for bankruptcy in December, 1989. Their home, built in 1985 with Elizabeth as general contractor, was on the market. In the months preceding her death, Elizabeth tried to borrow money from a number of people.
The most telling indicator of Elizabeth's monetary dilemma and mental state was not admitted into evidence. In a videotaped deposition, Carl Engstrom testified that Elizabeth extracted $500,000 from him over the past twenty-five to thirty years. She was apparently blackmailing him based on their brief affair that took place when she was married to her first husband. Engstrom believed
An addictionologist testified that suicidal ideation typically develops over two or three years, and that Elizabeth's earlier suicide threats to Engstrom were evidence of suicidal thinking. In the expert's view, Engstrom's cutting off of funds that Elizabeth could use for drugs was the "major precipitating event" in her suicide.
The financial picture was not entirely gloomy. The Veltmanns were willing to accept an incoming offer of $1,200,000 for the house and an adjacent lot. Carl testified that this money would be used to pay off mortgages with the balance infused into their failing corporation. But Elizabeth told friends that she did not want to live any longer, and that no one would have her house after she was gone; she believed Carl would remarry after her death, but "another Mrs. Veltmann" would not have what she had. Elizabeth said she would destroy everything.
III. The Evidence Against Carl and Chris Veltmann
The evidence against the defendants is entirely circumstantial. The government argued that the arson and murder were motivated by greed
On the date of the fire, the two Veltmann couples returned from the honeymoon cruise. Elizabeth had a migraine early in the morning hours of January 7th, and received a shot of Demoral from the ship's doctor before disembarking. She was also suffering from dysentery. Chris and his wife were dropped off at their nearby home, and Carl and Elizabeth returned to the Veltmann residence at about 3:30 p.m. A witness saw Chris' car parked in their driveway at around 6:00 p.m. There is little agreement about what happened next.
Chris did not testify at trial, but he made a statement to investigators that was audiotaped and played for the jury. According to Chris, he stopped by his parent's home around 6:30-7:00 p.m. after going by the post office. He intended to check on his mother, knowing she was not well. When he got there, Carl was preparing to leave for a hunting trip in Montana and Elizabeth was resting in bed. Chris visited with his parents and returned to his home at around 8:00 or 8:30 p.m. According to Chris, Carl showed up at his house sometime later, visited for a hour or so and then left.
The remainder of the case against Chris rests on his knowledge of the alarm system, his role in making insurance claims, his receipt of some insurance proceeds, and conflicting testimony about his emotional reaction to news of his mother's death. It was Chris who found Elizabeth's missing purse and keys in the trunk of a car in the garage.
Carl made statements to fire, police, and insurance investigators, and testified at trial. He said he left the residence at about 9:00 p.m. with Chris, leaving Elizabeth resting in bed. He followed Chris to his house and visited until approximately 10:30 p.m. He then left to go hunting and attempt to raise money in Montana, intending to get the car serviced and meet with his bankruptcy attorney en route. He decided to make this trip on the spur of the moment, testifying at trial for the first time that he did not simply spend the night in his house because Elizabeth was "ragging on him" about their finances. He spent the night in a motel. He did not have appointments with the lawyer or car dealership, but the lawyer testified that he did expect Carl in his office on the afternoon of the January 8th. In Montana, Carl planned to visit an acquaintance. This man testified that he had not heard from Carl since 1971, no longer owned the property on which Carl had hunted, and would not have loaned him money.
Carl called Chris on the morning of January 8th only to learn of Elizabeth's death. He returned home and met with the police. His statement was somewhat vague regarding his actions prior to leaving the house, but was quite specific about his trip after leaving Chris'. Carl also testified that when he found the suicide note in October 1991, he dated it January 7, 1990, because that was the date of Elizabeth's death.
Terry Price, Carl's cellmate, testified that Carl told him the fire was set with lighter fluid, but that he left for Montana the day before the fire and was hunting when the fire started. Carl allegedly told Price he went to Montana to hunt and raise money, and that the alarm and smoke detectors were not working. Price also overheard Carl talking on the phone to someone about Chris, saying "I told him to keep his mouth shut." Price testified that Carl said he dated the suicide note "January 7, 1990" because the insurance companies would not pay off otherwise; presumably Carl believed that the note should be dated, and that the date of death was most likely to promote payment by the insurers.
A business associate of the Veltmanns testified that Carl once suggested to him that he simply burn down a problem piece of property, and that Carl explained to him how to set the fire, while cautioning him to establish a good alibi. The jury also heard about previous fires on property owned by defendants. In the early 1970's, a vacant house owned by Elizabeth and Carl was destroyed in a fire. In 1985, the cottage owned by the Veltmanns on property adjacent to the residence that is the subject of this case was also destroyed by fire.
Carl denied having anything to do with the arson to his residence and with the death of his wife. Both defendants were convicted on all counts and sentenced to life in prison.
STANDARD OF REVIEW
The first two issues raised by defendants concern the denial of motions for judgment of acquittal based on the sufficiency of the evidence. The evidence must be reviewed in the light most favorable to the government. United States v. McKinley, 995 F.2d 1020, 1025 (11th Cir.1993). Convictions will be affirmed if "any reasonable construction of the evidence allowed the jury to
I. Denial of Motions for Judgment of Acquittal
The first two issues are dealt with in summary fashion. Defendants challenge the district court's denial of judgment of acquittal based on insufficiency of the evidence regarding use of the Veltmann property in interstate commerce as required by 18 U.S.C. § 844(i). We find this argument without merit and discuss it no further.
Defendants also assert there was insufficient evidence to support findings of guilt, alleging error in the trial court's denial of their timely motions for acquittal. We must, of course, view the evidence in a light most favorable to the government. McKinley, 995 F.2d at 1025. We cannot agree with defendants. The evidence admitted regarding the smoke detector and alarm systems, statements made to cellmates, defendants' inconsistent statements about their actions that evening, Carl's commentary about how to commit arson, and the previous fires on Veltmann property precludes a finding that based on the evidence before them a jury could not have found Carl and Chris Veltmann guilty beyond a reasonable doubt. Because we reverse and remand for new trial based on evidentiary error, this issue needs no further analysis.
II. The Reasonable Doubt Instruction
The defendants contend they were denied a fair trial because the district court utilized a non-pattern reasonable doubt instruction that impermissibly altered the quantum of proof. The challenged jury charge reads as follows:
R. 9-24-6 (emphasis added).
Defendants objected to this instruction because it does not match the Eleventh Circuit pattern instructions. Specifically, defendants objected to inclusion of the underlined language.
In reviewing "reasonable doubt" charges, we must consider the instruction as a whole. United States v. Daniels, 986 F.2d 451, 456 (11th Cir.1993). It is well settled that a trial judge has broad discretion in formulating jury instructions. Id. Nonetheless, a constitutionally deficient reasonable doubt instruction is not subject to harmless error analysis and requires reversal of conviction. Sullivan, ___ U.S. at ___, 113 S.Ct. at 2082 (misdescription of the burden of proof vitiates all the jury's findings).
At the outset, we note that district courts are not required to use the Pattern Jury Instructions of the District Judges Association of the Eleventh Circuit (1985). We have on countless occasions approved jury instructions which did not exactly track pattern language.
The issue before this Court is whether the instruction given, taken as a whole, is constitutionally deficient because it misdescribes the burden of proof. We cannot agree with defendants that the instruction is infirm.
Defendants invoke Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam) in support of their argument. In Cage, the Supreme Court reversing a conviction, held that the challenged reasonable doubt instruction suggested a higher degree of doubt than was required for acquittal. The instruction read, in relevant part:
Id. at 40, 111 S.Ct. at 329 (original emphasis deleted; emphasis added). The Court focused not upon the "mere caprice and conjecture" language, but on the quantum of proof suggested by the words "actual substantial doubt" and "moral (rather than evidentiary) certainty." Id. at 41, 111 S.Ct. at 330.
Similarly, this Circuit has on at least two occasions approved reasonable doubt instructions containing language similar to that now challenged. United States v. Turk, 526 F.2d 654, 669 (5th Cir.1976) ("Such doubt must be substantial rather than speculative, that is, a defendant is never to be convicted upon mere suspicion or conjecture."), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976); United States v. Fernandez, 496 F.2d 1294, 1297 (5th Cir.1974) ("reasonable doubt does not arise from a mere conjecture, speculation or whim, nor does it arise from a reluctance to convict  through a feeling of sympathy or mercy"). In each of these cases the language about which defendants here complain was incorporated within a lengthy instruction, but was not recognized by the court as bearing upon the quantum of proof.
We do not believe that the challenged language misled the jury when taken as a whole. The instruction more than adequately describes a reasonable doubt using language previously approved by this circuit and elsewhere. The offensive sentence was preceded by two paragraphs on the government's burden of proof, and succeeded by more instruction on the duty to acquit in the presence of a reasonable doubt. Accordingly, we hold that the district court did not err in giving this non-pattern reasonable doubt instruction.
We are troubled however, by an argument first raised in Defendants' reply brief concerning the absence of instruction on the presumption of innocence at the beginning of the trial. Scrutiny of the record reveals that the presumption of innocence was not mentioned by the court even once before, during, or after voir dire of the jury. Defendants questioned this omission. Although the court charged the jury on the presumption before they retired to deliberate, we believe it extraordinary for a trial to progress to that stage with nary a mention of this jurisprudential bedrock. Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (per curiam); Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895); United States v. Dilg, 700 F.2d 620 (11th Cir.1983).
The issue was waived by defendants' failure to raise it earlier. United States v. Kimmons, 1 F.3d 1144, 1145-46 (11th Cir. 1993); United States v. Benz, 740 F.2d 903, 916 (11th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985). We recognize that a visiting judge heard the case, and that it will be retried before another. Consequently, it is not necessary to further discuss this omission.
III. The Evidentiary Rulings
A. State of Mind Evidence
Defendants appeal the trial court's exclusion of Carl Engstrom's videotaped deposition. Defendants offered the deposition as relevant hearsay, admissible pursuant to Fed.R.Evid. 803(3), reflecting Elizabeth's state-of-mind. The government objected, claiming that decedent did not threaten suicide in the last phone call with Engstrom, and that threats of suicide in months preceding her death were inadmissible hearsay and irrelevant. The district court agreed with the government, also finding the information cumulative and collateral, and excluded the deposition testimony. We believe the trial court erred. The deposition was admissible under the state of mind exception, and while conceivably cumulative, its import was such that exclusion violated defendants' right to put on a defense. This abuse of discretion requires reversal.
Rule 803(3) of the Federal Rules of Evidence allows the admission of "... [a] statement of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health)...." The declarant's statement of mind must be relevant to some issue in the case before such testimony can be admitted under Rule 803(3). T. Harris Young & Assoc.
A homicide victim's state of mind is unquestionably relevant to the defense theory that she committed suicide.
In In re Fill, 68 B.R. 923 (Bankr.S.D.N.Y. 1987), an action to avoid allegedly fraudulent transfers, the transferee was permitted to offer state of mind hearsay evidence of the debtor's declarations that he intended to repay the loans even though such statements were made six years before actual repayment. The court discussed a continuity of time concept relevant to the state of mind inquiry, quoting a leading commentator as follows:
Id. at 928, citing McCormick, Evidence, § 294, at 844-45 (Cleary, 3d ed. 1984) (emphasis added).
The court noted that substantial weight must be given to the "significant number of years between the making of the statement that the loans would be repaid and the actual repayment of the loans...." Id.
The temporal relationship between Elizabeth's statements and her death is far less attenuated than the six year time lag analyzed in Fill. Where one threatens suicide, talks about what should be done in event of her death, and dies within months under suspicious circumstances including the presence of a suicide note and other witnesses corroborating her depression and suicidal ideation, we do not believe uncertainty over the exact date of the suicide threats should preclude admission of those statements to show state of mind.
The totality of the circumstances convinces us that Engstrom's testimony was relevant, admissible hearsay under the state of mind exception for another reason. Elizabeth was dependent on him for money. Five hours before she died, after a quarter of a century of responding to her demands, Engstrom told Elizabeth he would not give her any
The extent of Elizabeth's financial dependence on Engstrom figured prominently in her mental state on January 7th. We hold that Engstrom's deposition was relevant, admissible state of mind evidence because it contained not merely references to suicide, but information pertinent to decedent's desperate mental condition regarding finances on the date of her death.
However, our inquiry is not over. The trial court ruled that the testimony was cumulative and collateral. Defendants argue that exclusion of crucial, relevant, admissible evidence violated their constitutional right to present a defense. Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987). The Engstrom deposition, they say, provided Elizabeth's motive for self-destruction. The government's response rests on United States v. Anderson, 872 F.2d 1508 (11th Cir.1989), cert. denied, 493 U.S. 1004, 110 S.Ct. 566, 107 L.Ed.2d 560 (1989). In Anderson, the Court instructed that the right to present a defense is subject to compliance with the rules of evidence. Id. at 1519. Because we hold that Engstrom's deposition contained state of mind evidence admissible under Rule 803(3), the rule extracted from Anderson does not influence our consideration.
We move, then, to a brief review of admitted testimony to determine if Engstrom's deposition was, in fact, cumulative or collateral. Elizabeth's relationship with Engstrom figured prominently in the conclusions of the defenses' addictionologist. The expert testified that Engstrom's cutting off of funds that Elizabeth could use to buy drugs was the "major precipitating event" in her suicide. Nonetheless, his only direct reference to Engstrom was as follows:
We cannot find, nor has counsel brought to our attention any other references to Engstrom in testimony or evidence heard by the jury.
"Although the trial court has discretion to exclude testimony and will not be reversed absent an abuse of discretion, the trial court's discretion does not extend to exclusion of crucial relevant evidence." United States v. Ethridge, 948 F.2d 1215, 1218 (11th Cir.1991) (citation omitted). Although a number of witnesses talked about Elizabeth's depression, threat to destroy her house, drug addiction, and financial straits, no witness brought to the jury that aspect of decedent's financial desperation arising from the end of a successful, long-term, blackmail. We find that exclusion of this evidence impaired defendants' right to fully present their defense, requiring reversal and remand for new trial.
B. Prior Fires Evidence
Over defendants' objections to the admission of any references to prior fires, the jury learned of two previous fires (one in the early 1970's and one in 1985) on Veltmann-owned property. This evidence came in through 1) a firefighter's testimony, 2) audiotapes of defendants' interviews with an investigator for one of the insurers, 3) the audiotape of Chris' interview with a police sergeant, 4) the police sergeant's testimony, and 5) excerpts from Carl's deposition in a civil case against insurers arising from this fire. Defendants believed the government would introduce evidence of these fires pursuant to Rule 404(b).
At trial, defendants objected on the basis of Rule 404(b) each time the fires were mentioned. The court sustained the objection to the firefighter's testimony, but overruled each subsequent objection. At no time prior to the introduction of Carl's civil deposition did the government argue for admissibility under Fed.R.Evid. 801(d)(2). The district court agreed that the civil deposition was admissible as an admission. We affirm in part and reverse in part. Each source of prior fire evidence is discussed separately; rationale supporting their inadmissibility necessarily overlaps to some degree.
1. The Firefighter's Reference to the 1985 fire:
A firefighter was asked if he was familiar with the layout of the Veltmann house prior to responding to the fire. He answered, "Yes. Years earlier we had a fire next-door to theirs." Defense counsel's objection was sustained, apparently based on rule 404(b).
2. Defendants' Statements to the Insurance Investigator:
An investigator working on behalf of one of the insurers inspected the Veltmann home on January 10th, and on January 11th conducted tape recorded interviews with Carl and Chris. The recordings were played for the jury. Chris answered the question "Have your parents ever had a fire in any property that they've owned in the past?" by discussing a fire in the 1970's to a vacant house owned by the Veltmanns. Chris believed that fire was caused by a lightning strike. Appropriate objections based on Rule 404(b) were made during the playing of Chris' tape.
Carl's statement to the investigator was also played to the jury over objection.
Carl next described the fire which occurred in a vacant house in Illinois (the same one mentioned by Chris), which took place in the early 1970's. Carl related that fire investigators told him that fire was set, perhaps by transients.
3. Chris Veltmann's Statements to the Police Sergeant:
On January 8, Chris was interviewed by a police sergeant. The audiotape of the interview was played for the jury.
4. The Police Sergeant's Testimony:
On January 9th, after being advised of his Constitutional rights under Miranda, Carl was interviewed by the sergeant. The tape of this interview was not introduced into evidence at trial. When asked if he knew of anyone with a motive to set the fire, Carl discussed the 1985 next-door fire. The sergeant then testified over objection
5. Carl Veltmann's Civil Suit Deposition.
Just prior to his indictment, Carl Veltmann gave a deposition in a bad-faith insurance suit he initiated against insurers regarding payment of claims arising out of the January 7th fire. Portions of his deposition testimony were read into evidence over defendants' objections.
The Applicability of Rule 404(b):
Because all of the previous fire evidence except the civil deposition was admitted over Rule 404(b) objections, we begin with that rule. Evidence of extrinsic offenses is inadmissible to prove that the accused has the propensity to commit the crime charged. Fed.R.Evid. 404(a). Nonetheless, extrinsic act evidence is admissible under Rule 404(b) as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Fed.R.Evid. 404(b).
The government maintains on appeal that the statements about prior fires were admissible not as 404(b) evidence, but as statements made in furtherance of the present crime. Evidence of criminal activity other than the offense charged is not extrinsic under Rule 404(b) if it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense. United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983) (citations omitted). See also United States v. Leavitt, 878 F.2d 1329, 1339 (11th Cir.), cert. denied sub nom., Garces v. United States, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989); United States v. Meester, 762 F.2d 867, 877 (11th Cir.), cert. denied sub nom., Sawyer v. United States, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 562 (1985).
Unquestionably, the fires set in the 1970's and 1985 did not arise out of the same transaction or series of transactions as the charged offense. Defendants are charged solely with setting fire to the Veltmann home, not to decades of conspiracy to defraud insurers. Nor is evidence of the previous fires necessary to complete the story of this crime. There is nothing linking the previous and present fires; no thread of evidence extends from the 1970's to the night of January 7, 1990, when the Veltmann home was destroyed. The more difficult issue is whether the defendants' suggestion that their tenant in the 1985 next-door fire was a possible suspect in this crime inextricably intertwines the two fires.
When the police sergeant asked Chris and Carl if they knew of anyone with a motive to set Veltmann home fire both responded by bringing up the 1985 fire and the disgruntled former housekeeper who was their tenant. Thus, facts surrounding the 1985 fire became linked with the present offense. By directing the investigation toward the housekeeper, defendants could have been engaging in activity in furtherance of the charged offense; to wit, naming another suspect in an attempt to exculpate themselves. We find that Chris' taped statement to the police, and the sergeant's testimony about the 1985 fire were inextricably intertwined with evidence of the charged offense, made in furtherance of the crime charged, and properly admitted into evidence.
In contrast, defendants' statements to the insurance investigator were made in response to questioning about "any previous fires on property owned by the Veltmanns." This inquiry springs from an altogether different well. The question did not direct defendants to the present fire at all; specifically, they were asked to focus on previous events. By its nature, this question does not give rise to an answer invoking furtherance of the charged offense. We find that the statements made to the insurance investigator were not made in furtherance of the charged offenses, and proceed with Rule 404(b) analysis of those statements.
In United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59
Nothing on this record reflects that the district court conducted the Beechum analysis. It appears that defense counsel was never fully heard on its 404(b) pretrial motion, although the rule was mentioned in each quoted sidebar.
For extrinsic offenses to be relevant to an issue other than character, they must be shown to be offenses, and must also be similar to the charged offense. United States v. Guerrero, 650 F.2d 728, 733 (5th Cir.1981). See Beechum, 582 F.2d at 912 ("Obviously, the line of reasoning that deems an extrinsic offense relevant ... is valid only if an offense was in fact committed and the defendant in fact committed it."). Proof that defendants committed other relevant offenses prior to the charged act must be sufficient to permit a jury, acting reasonably, to find the preliminary facts by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988).
To meet the threshold requirement for relevancy of the statements to the insurance investigator, the government had to demonstrate that (1) Carl or Chris Veltmann committed arson in the 1970's Illinois fire and 1985 next-door fire, and (2) the fires were similar to that set in the Veltmann home. There is nothing in the record showing by a preponderance of the evidence that either defendant set the previous fires. At most, the evidence suggests that the Illinois fire was possibly set by transients, and that the next-door fire had an undetermined cause. Because the genesis of these fires is unknown, no assertion can be made that the fires were similar. Indeed, the only parallel between the three fires is that they were on property owned by the Veltmanns. Neither defendant was charged with arson before this incident. Carl's recovery of $40,000 in insurance proceeds for the 1985 fire is surely not proof by a preponderance of the evidence that he committed arson. There is not even a scintilla of evidence implicating Chris as an arsonist in either previous fire. Accordingly, we find that defendants' statements to the insurance investigator about both the 1970's and 1985 fires failed to meet the threshold level of relevance for admissibility under Rule 404(b). We need not, therefore, engage in Rule 403 balancing
The Applicability of Rule 801(d)(2):
Rule 801 was not brought up until sidebar discussion about admission of Carl's civil deposition. The government argued that the deposition was admissible under subsections 801(d)(2)(A) or (E), which provide that a statement is not hearsay if:
Because it appears that the trial court admitted the civil deposition as an admission for use against Carl alone, we begin with that part of the rule. Statements made
We must determine if those portions of the civil deposition pertaining to the 1985 next-door fire were "dragged in by the heels" solely for prejudicial impact. Carl mentioned the fire in response to the insurer's query about his "theory of what happened." This is a similar inquiry to that undertaken by the police sergeant, supra, leading the deponent directly to explanation of circumstances surrounding the charged crime. Indeed, Carl's response closely tracked that given to the sergeant when he asked if anyone had a motive to set the fire. We find the query legitimate and its answer admissible. As with the sergeant's testimony, Carl's deposition answers are undoubtedly prejudicial, but not so unfairly prejudicial as to warrant exclusion. Accordingly, we affirm the trial court's ruling on admissibility of those portions of Carl Veltmann's civil deposition that were read to the jury.
C. The Bruton Violation:
Carl Veltmann maintains that pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), his Sixth Amendment right to Confrontation was violated when David Meehan, Chris' cellmate, was permitted to testify about statements Chris made to him that directly inculpated Carl. Chris did not testify, thereby robbing Carl of the opportunity to cross-examine him as to Meehan's allegations. The government apparently concedes that a Bruton violation occurred, but responds that the cumulative admissible evidence of guilt was so overwhelming, and Chris' comments so insignificant by comparison, that admission of Meehan's testimony was harmless error. We do not agree that the error was harmless, and reverse.
In Bruton, the Supreme Court held that the admission of a statement made by a non-testifying defendant which inculpates a co-defendant violates the co-defendant's right to confront a witness. Only those statements by a non-testifying defendant which directly inculpate a co-defendant give rise to the constitutional violation. United States v. Arias, 984 F.2d 1139, 1142 (11th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2979, 125 L.Ed.2d 676 (1993), and cert. denied, ___ U.S. ___, 113 S.Ct. 3062, 125 L.Ed.2d 744 (1993), citing United States v. Beale, 921 F.2d 1412, 1425 (11th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 100, 116 L.Ed.2d 71 (1991). Bruton violations are subject to harmless error analysis. Beale, 921 F.2d at 1425; United States v. Petit, 841 F.2d 1546, 1556 (11th Cir.1988), cert. denied, 487 U.S. 1237, 108 S.Ct. 2906, 101 L.Ed.2d 938 (1988). "In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error." Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972).
We find the government's argument that the error was harmless without merit. The entire case against Carl was circumstantial. Stripped of the erroneously admitted previous fire evidence, the government's case rests on disputed evidence about the condition of the smoke detectors and alarm, estimates of burn time relative to Carl's departure from the house, testimony of an "alibi" witness that he was not anticipating a visit from Carl, allegations of Carl's cellmate about Carl's admissions that were at least partially without factual accuracy,
In this case, the properly admitted evidence of guilt is less than overwhelming, and the prejudicial effect of the codefendant's statements is so significant in comparison, that it is clear that admission constituted harmful error. David Meehan's testimony of Chris' statements about Carl, given Chris' decision not to testify, deprived Carl of this Sixth Amendment right to confront witnesses against him, and constituted prejudicial error necessitating reversal and remand for a new trial.
In summary, we hold as follows on defendants' claims of evidentiary error: (1) we reverse the trial court's exclusion of Carl Engstrom's video deposition; it was admissible as state of mind evidence under Rule 803(3); (2) we affirm the trial court's admission of Chris' statement to the police sergeant and the sergeant's testimony about the 1985 fire; (3) we reverse the admission of defendants' statements to the insurance investigator; they were not made in furtherance of the crime, comprised improper character evidence, and did not come within Rule 404(b); (4) we affirm the trial court's admission of portions of Carl's civil deposition pertaining to the 1985 fire; the statements were an admission under Rule 801(d)(2)(A) that were not unfairly prejudicial pursuant to Rule 403 analysis; (5) we find that David Meehan's testimony constituted a Bruton violation that was not harmless error, requiring reversal.
For all of the foregoing reasons we AFFIRM the trial court rulings in part, but REVERSE and REMAND for new trial based on evidentiary errors.
Defendants suggested that the note was written near the time of death because Elizabeth referred to Patricia as "family" and Patricia and Chris were not married until December 23, 1989, two weeks before the fire.
Decisions of the Court of Appeals for the Fifth Circuit handed down before October 1, 1981 were adopted as precedent by the Court of Appeals for the Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc).
"A reasonable doubt is not a caprice or whim. It is not speculation or suspicion. It is not an excuse to perform an unpleasant duty, and it is not sympathy." Edelin, 996 F.2d at 1242.
Mr. Dannheisser: Your Honor, we discussed, the — we have an objection to any 404B evidence. The government appears to have specifically asked the witness the question to allow him to try to get into this fire next-door. I'm asking the Court to either grant a mistrial or to give a jury instruction that there's no evidence in this trial that any other fire is related to this. They specifically stated they weren't going to get into it until you ruled on it, and they specifically did it.
The Court: The motion is denied. They didn't get into anything. They just mentioned that he was there before and he asked him how and he told how. And then when you made the objection it was let out. There was not testimony at all with regard to that fire. R.10-52.
The denial of Chris' motions is not at issue in this appeal. This interaction is included to demonstrate that from the beginning of the trial, defense counsel and the Judge focused exclusively on Rule 404(b).
Mr. Hanlon: Judge, we just got into one of the 404B's that they started a fire 20 years ago. And my motion is to exclude it. The federal ten-year timeliness on a past conviction bars —
The Court: There's nothing here that says anything about a conviction.
Mr. Hanlon: No. They weren't. That's just it. He's not trying to get in they've had four other fires, most of them are 20 years old. Some of them may have even won civil judgments in. I'm sure, I'm guessing, but I'm sure the argument's going to be how can you have five fires and not be a fire bug.
The Court: Counselor, we're here for the purpose of getting at the truth, and if these fires occurred and this son, Mr. Veltmann, Carl Veltmann is making these statements, we're entitled to hear it, the jury's entitled to hear it. Whether or not they were set by him, I'm not going to let anybody put anything in as to how they were set unless he was convicted and took the stand. If he didn't take the stand, you're not going to go into it at all. But the fact that they occurred, they occurred. It doesn't mean that they occurred criminally or somebody set them. R.11-135-136.
At the conclusion of the tape, the court approved Chris' attorney's request for adoption of the prior side bar.
Mr. Hanlon: Judge, this is about the third fire Mr. Ruddy has brought out through the statement.
The Court: It's the same fire as the first one in his first tape.
Mr. Hanlon: I don't believe it is, Judge.
The Court: Maple Park, Illinois.
Mr. Hanlon: Well, there's a confusion between Maple Park hence and staying in that area. There was more than one fire there, and that's what the problem is here. We're dealing with five fires that are collateral in nature. I understand about 404(b), but it's starting to become a feature. They are not offering to prove identity, motive, any of the other things, only the fact that these people had this many other fires.
The Court: I'm allowing this in. This is the tape that's being played and the tape is in evidence. What's on the tape is in. As far as the testimony comes from this witness and the opinion testimony or anything else, I'll rule on it when the time comes.
Mr. Dannheisser: While we're up here, can I — would I assume the Court is acknowledging that we have objections to any prior fires or discussions so we don't have to keep coming up here?
The Court: Yeah. R.11-142-144.
Mr. Hanlon: Judge, now the facts of the 404(b) that I filed a motion to keep out that hadn't been ruled on yet. Whatever my client talks about or not, he didn't own the property, and now to try to make it look like he lied about it again, they are trying to convict him in this fire because of other fires. And it's getting to be more than — its not for identity, motive, opportunity. It's none of that. It's only to convict him of this case based upon his propensity to commit crimes in other cases, i.e. other fires.
The Court: Your objection's overruled. This is an interview that was made by him in connection with an investigation of this fire, and he has a right to testify as to what testimony or what the man stated to him at the time when he was questioning him, and your objection is overruled, and your exception is noted.... Mr. Dannheisser's exception is noted also. R.12-68-69.