312 F.3d 757 (6th Cir. 2002), 00-5794, U.S. v. Cope

Docket Nº:00-5794, 00-5797.
Citation:312 F.3d 757
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Randall COPE and Terry Wayne Cope, Defendants-Appellants.
Case Date:November 19, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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312 F.3d 757 (6th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Randall COPE and Terry Wayne Cope, Defendants-Appellants.

Nos. 00-5794, 00-5797.

United States Court of Appeals, Sixth Circuit

November 19, 2002

Argued: Sept. 20, 2002.

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Charles P. Wisdom, Jr. (briefed), Assistant United States Attorney, Joseph L. Famularo, U.S. Attorneys's Office, Lexington, KY, Edwin J. Walbourn, III (briefed), Assistant United States Attorney, Frederick A. Stine V (argued and briefed), Assistant United States Attorney, David Bunning,

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Assistant United States Attorney, Covington, KY, for Plaintiff-Appellee.

Harry P. Hellings, Jr. (argued and briefed), Hellings & Pisacano, Covington, KY, for Defendant-Appellant, Randall E. Cope.

Randall E. Cope, Terre Haute, IN, pro se.

Kevin M. McNally (argued and briefed), McNally & O'Donnell, Frankfort, KY, for Defendant-Appellant, Terry Wayne Cope.

Before DAUGHTREY, GILMAN, and JOHN R. GIBSON, Circuit Judges.[*]

OPINION

GILMAN, Circuit Judge.

Brothers Randall Cope and Terry Cope (collectively, the Copes) were indicted on eleven counts of attempted murder and firearm violations. The Copes were convicted by a jury on ten of the counts. Randall was subsequently sentenced to 567 months' imprisonment and Terry to 502 months' imprisonment. Both now appeal, raising a myriad of issues. For the reasons set forth below, we AFFIRM the judgments of the district court.

I. BACKGROUND

This case centers around allegations relating to the attempted murders of Sarah Jackson, Elizabeth and Ronald Nimmo, and former Assistant United States Attorney (AUSA) David Bunning. Jackson is Randall's former fiancée, and Elizabeth Nimmo, who is married to Ronald Nimmo, is Terry's ex-wife. AUSA Bunning represented the government in pretrial proceedings involving the Copes.

On May 8, 1998, Randall was arrested on a complaint of internet harassment and credit card fraud. Randall had allegedly logged on to the e-mail account of Jackson without her permission and sent threatening and harassing e-mail messages to Jackson's acquaintances. He also used her credit card to purchase computer equipment on the internet. Jackson had terminated her relationship with Randall in November of 1997.

At the time of his arrest, Randall consented to the search of his car by law enforcement officers. The search uncovered a .38 caliber revolver. Randall posted bond, was released, and his trial date continued until February 1, 1999.

In the interim, Marshall County, Kentucky law enforcement officers arrested Randall on December 26, 1998 for sending harassing communications in the form of nude pictures of Jackson that Randall had placed on the driveway of Jackson's father. As a result, Randall's bond stemming from the complaint of internet harassment and credit card fraud was revoked, and he was returned to jail to await trial.

At some point before Randall's bond was revoked—the time period, let alone the exact date, is unclear from the record— Shirley Shepherd, an acquaintance of the Copes and a local gun dealer, had a conversation with Randall. Randall told him that Terry "had a problem and that if [Terry] didn't have a witness against him, that . . . his brother would [no longer] have a problem." The problem that Randall was referring to involved state criminal charges that were pending against Terry in Tennessee. He then explained to Shirley that he would pay $25,000 for someone "to get the job done."

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Randall's sister posted bond for Jason Griffith, one of Randall's cellmates, on January 17, 1999. In exchange for the bond money, Griffith agreed to "knock off Jackson. Randall told Griffith to wait for a telephone call, a call that Griffith never received. He then told Griffith that a member of Randall's family would kill Jackson if Griffith could not do so. Randall expressed similar sentiments to one of his business partners, Charles Stewart. He asked Stewart if he knew why Jackson did not want to date him. Stewart responded by saying that Jackson was afraid Randall would kill her. Randall replied that he would not kill her, but that he knew people who would kill her for him.

On January 22, 1999, ten days before Jackson was scheduled to testify against Randall regarding the internet harassment and credit card fraud charges, someone fired gunshots at the car in which Jackson and her son were sitting as they were about to pull out of their home's garage in Florence, Kentucky. Five bullets, which were fired from a .38 caliber revolver, penetrated Jackson's car. The rifling characteristics showed that the bullets could have been fired from one of three .38 caliber revolvers later found at the home of the Copes' father or from the .38 caliber revolver discovered four months later in the yard of Terry's house. But the bullets also could have been fired from any of 50 to 100 million other handguns with the same rifling characteristics.

Jackson did not see who fired the shots. She believed, however, that Randall played a role in the shooting due to the tumultuous nature of their relationship, the fact that Jackson had testified at Randall's detention hearing and was scheduled to testify at his trial, and Randall's having confided in her that he wished to have his ex-wife, Sandy, who currently resides in Denver, Colorado, killed with an unregistered gun.

Randall talked to two other fellow inmates, James Hiatt and Carl Clay, about his desire to have Jackson killed. The day after the shooting, Randall told Clay that "if something happened to him (Randall), . . . someone in his family would kill her." After Randall talked with Hiatt about having Jackson killed, Hiatt contacted a Federal Bureau of Investigation agent, who told Hiatt to give Randall the name "Bill" if Randall approached him again about killing Jackson. The agent also supplied Hiatt with the phone number of Bill, who was in actuality an undercover sergeant with the Campbell County Police Department.

Randall subsequently asked Hiatt if Bill would "take care of somebody for him." When Hiatt replied that it would be possible, Randall wrote to Terry: "I found someone who can handle all our jobs. He . . . will do whatever needs to be done. He typically works locally here, but is willing to travel out of town to do special jobs assuming the money is right. Bill @ 341-5125. Supposedly very reasonable, quiet (no issues), and able to do anything." He later wrote to Terry: "[Bill] recently did a job for a guy I met. In less than a week, he produced the desired results. And all the guys [sic] problems were eliminated permanently. . . . He has access to dynamite, blasting caps & fuses. . . ."

Randall wrote four other incriminating letters. The first, written on February 12, 1999, was addressed to his parents, apprising them that five "warning shots" had been fired into Jackson's car from a distance of three to five feet. On March 17, 1999, Randall wrote a letter to Terry, requesting that Terry ask their father to meet with "the Hungarian," a contract killer, allegedly to arrange for the murders of the Nimmos. Randall subsequently wrote

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a letter dated March 21, 1999 to Terry to tell him that Jackson would likely testify against Randall regarding the internet harassment and credit card fraud charges because she was "fully committed to trying to get me sent to prison." He also told Terry to contact the "drywall contractor" and to "handle business" for him, meaning that Terry was to find a contract killer to murder Jackson. The fourth, the so-called "Daddy (for your eyes only) letter," was written to his father on March 29, 1999 and reads in pertinent part as follows:

Given that I'm in here, there's some unsavory business you need to handle. Contact our friend . . . and inquire about the Hungarian, & whether or not he's still going to Tuesday's market. . . . Wearing . . . gloves, put $2500 cash in each of . . . 3 envelopes now. Go to the market unannounced starting Tuesday taking the above with you. . . . Once you meet the [Hungarian] (he's aware that there's work to be done & is interested), take him for a walk where you are not overheard. Tell him about a dream you had where you needed a problem resolved permanently either by accident or a disappearance, and either are permanent . . . . The deposit should be about 2 envelopes. . . . Make sure you are wearing gloves when you handle these envelopes. . . . If you're not up to doing this, tell Terry to tell me you can't do the job I asked you to do. If I don't get out, he'll have to handle it, which is what we don't want. . . . If you can't connect with the Hungarian or for some strange reason he's changed his mind, I've got a contact out of Paducah.

Randall's father showed the letter to Terry, and the two of them went to a market in search of the Hungarian, where they were told that the Hungarian "no longer existed." The government contends that the Copes sought to pay the Hungarian to kill the Nimmos.

According to the government, this was not the first time that one of the Copes had sought the services of the Hungarian. Randall had previously asked Shirley Sheppard about the availability of the Hungarian in order to arrange for the murder of the Nimmos.

On April 6, 1999, the same day that Terry and his father visited the market, Terry went to the United States Attorney's Office in Covington, Kentucky. Upon entering the building, Terry took out a large pocket knife and asked an administrative assistant if it was considered a weapon. He asked to see AUSA...

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