320 F.3d 526 (5th Cir. 2003), 01-30998, U.S. v. Wharton

Docket Nº:01-30998
Citation:320 F.3d 526
Party Name:U.S. v. Wharton
Case Date:February 04, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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320 F.3d 526 (5th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,


Curtis Alan WHARTON, Defendant-Appellant.

No. 01-30998.

United States Court of Appeals, Fifth Circuit

February 4, 2003

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Josette Louise cassiere (argued) and Alexander Coker Van Hook Asst. US Attys., Sonia Peters Cassidy, Shreveport LA, John F. Depue, Yoel Tobin, U.S Dept. of Justice , Crim .Div.App. Section Washington, DC For Plaintiff-Appellee.

Benedict P. Kuehne (argued), Jon A. Sale, Susan Dmitrovsky, Sale & Kuehne, Miami, FL, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana.

Before GARWOOD and CLEMENT, Circuit Judges, and RESTANI, Judge.[*]


Appellant Curtis Wharton ("Defendant") appeals his conviction for (1) the foreign murder of a United States national in violation of 18 U.S.C. § 1119; (2) conspiracy to kill in a foreign country in violation of 18 U.S.C. § 956; (3) fraud via interstate carrier in violation of 18 U.S.C. § 1341; (4) mail fraud in violation of 18 U.S.C. § 1341; and (5) wire fraud in violation of 18 U.S.C. § 1343. These convictions arose from the murder of Defendant's wife, Sheila Webb Wharton, in Haiti and Defendant's subsequent efforts to collect the proceeds of life insurance policies for which he was the beneficiary. We affirm.


In 1998, Defendant worked for All American Insurance in Shreveport, Louisiana, along with Judy Nipper. Sometime before May 1998, an acquaintance showed Defendant a taped segment from a December 12, 1997 Dateline NBC episode discussing a life insurance fraud scheme whereby the perpetrators would obtain life insurance policies and then travel to Haiti to obtain a false Haitian death certificate for the insured in order to collect on the policies.

Later that year, Defendant and Sheila Webb began dating. Defendant's counsel concedes that "[he], together with his future wife, Webb, and friend Judy Nipper, discussed replicating this fraud scheme, and began obtaining life insurance policies on Webb's life in May 1998." Appellant's Br. at 11. Defendant and Webb also discussed the plan with her uncle, explaining that they intended to follow through with the plan because they had found someone who could "furnish them with a body." Defendant and Webb continued to obtain policies from May 1998 to October 1999, accumulating over $2 million in life insurance coverage on Webb. Defendant was listed as the primary beneficiary on the policies, and Nipper was the co-beneficiary on at least one policy. The monthly premiums on all policies were paid through an

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automatic bank draft from Defendant's checking account. Defendant and Webb were married in the Dominican Republic in September 1999. Four months later, Webb was murdered in Haiti.

Defendant and Webb traveled to Haiti for unknown reasons several times in September and November 1999, and twice in January 2000. Defendant later gave dubious or clearly false explanations for these trips including that: (1) he was a financial advisor to the Government of Haiti; (2) he was collecting investors to develop a Haitian resort; and (3) he needed to close on an unsubstantiated Haitian loan. During the first trip to Haiti in September 1999, Webb and Defendant met Pierre Francois, a tour guide at a hotel in Petion-ville, Haiti, a suburb of Port-Au-Prince. Francois testified that Defendant and Webb asked him about obtaining a false passport on several occasions and that he eventually helped obtain one for Webb under the name "Gina Vincent." Francois identified Defendant as the man who paid for the false passport. Francois testified that Defendant gave him a business card with Nipper's phone number written on the back and instructed him to contact Nipper once the passport was ready. The passport, which was never delivered, and business card, with Nipper's phone number hand-written on the back, were recovered by Haitian police and presented as evidence at trial.

In early 2000, Defendant and Webb twice traveled to Haiti where a series of suspicious money transfers preceded Webb's murder. On January 5, 2000, Nipper wired Defendant $2,000. Eight days later, on January 13, Nipper wired $1,500. The following day, January 14, Nipper wired an additional $13,500 to Defendant. Webb was murdered in Haiti the next day, January 15, 2000.1 She was shot on an isolated road outside of Port-Au-Prince. Two days after Webb's murder, Francois deposited $7,000.00, which he admits he obtained from Defendant, into his bank account.

Defendant's later accounts of the events surrounding Webb's murder were conflicting, but he generally explained that his car was attacked by two car-jackers on a motorcycle and that, when Webb would not get out of the car, the attackers shot her four times and threw her body to the ground. Defendant stated that one attacker fled in the car and the other on the motorcycle. Upon arrival at the crime scene, the police noted that, although her purse had been emptied, Webb was still wearing jewelry. Defendant still had possession of his credit cards, passport, and other valuables. Webb's suitcase was discovered untouched in the allegedly stolen car found abandoned a few miles away. An autopsy revealed the presence of flunitrazepam, the active ingredient in rohypnol,2 in Webb's urine sample. Upon searching Webb's suitcase, the Haitian police discovered rohypnol tablets in a bottle of Webb's medication labeled Ritalin, while the Ritalin tablets were found mixed in another bottle.

The Haitian National Police (HNP) began an investigation. They noted discrepancies and inconsistencies in Defendant's statements, but Defendant returned to the United States before the HNP could detain

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him. Upon his return, Defendant promptly hired an attorney and sought to collect the life insurance proceeds.

Following an FBI investigation, Defendant and Nipper were indicted on February 9, 2001, for (1) the foreign murder of a United States national in violation of 18 U.S.C. § 1119 (Count 1); (2) conspiracy to kill in a foreign country in violation of 18 U.S.C. § 956 (Count 2); (3) fraud via interstate carrier in violation of 18 U.S.C. § 1341 (Counts 3 & 4); (4) mail fraud in violation of 18 U.S.C. § 1341 (Counts 5-15); and (5) wire fraud in violation of 18 U.S.C. § 1343 (Counts 16-18). The prosecution's essential theory was that Defendant, Webb, and Nipper conspired to pull off the life insurance scheme discussed. The prosecutors believed that Webb eventually backed out of the plan to fake her death and that Defendant and Nipper then conspired with Pierre Francois to kill Webb in Haiti to collect on the insurance policies. Defendant pled not guilty to all charges.

Defendant's first trial began on June 19, 2001, but was terminated after direct examination of prosecution witness Yolanda Sepulvado.3 Sepulvado testified that Nipper told her about a rat that Nipper and Defendant were using to test poison to determine whether it would kill Webb. The district court found that the testimony's prejudicial impact outweighed its probative value and excluded it under Federal Rule of Evidence 403. Defendant moved for a mistrial—for the fourth time in the first three days of testimony. The government opposed mistrial but, after substantial briefing, the court ultimately declared a mistrial on grounds that the statements were not in furtherance of the conspiracy charge and sufficiently prejudicial enough to warrant mistrial.

Defendant then moved to dismiss on double jeopardy grounds, arguing that the prosecution had actively sought mistrial. That motion was denied and a second trial commenced immediately thereafter on July 2, 2000. Defendant was convicted by the jury on all counts, and was sentenced to life imprisonment and ordered to pay a $2.5 million fine. The district court denied the post-verdict motion for new trial. Defendant is currently incarcerated.

This appeal followed.


I. Double Jeopardy

Defendant first argues that the district court erred in denying his motion to dismiss the case on double jeopardy grounds. Retrial is ordinarily allowed where the defendant moves for mistrial. Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In Kennedy, the Supreme Court analyzed the narrow circumstances under which a defense motion for mistrial nonetheless bars a retrial on double jeopardy grounds. Id. The Court recognized that retrial after a mistrial caused by prosecutorial misconduct may constitute double jeopardy if "the government [ ] conduct in question [was] intended to 'goad' the defendant into moving for a mistrial. . . ." Id. at 676, 102 S.Ct. 2083 (emphasis added).

In Kennedy, the Court made it clear that prosecutorial misconduct alone is not sufficient for a retrial to result in a double jeopardy violation: "Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant's motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double

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Jeopardy Clause." Id. at 675-76, 102 S.Ct. 2083 (emphasis added). Retrial is not barred even where the prosecution engages in "intentional misconduct that seriously prejudices the defendant." See United States v. Singleterry, 683 F.2d 122, 123 n. 1 (5th Cir. 1982). Once the court determines that the prosecutor's conduct was not intended to terminate the trial, "that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment. . . ." Kennedy, 456 U.S. at 679,102 S.Ct. 2083.

Defendant claims that the prosecution's case against him was "on the ropes" and that the prosecution purposely elicited prejudicial hearsay evidence from Sepulvado so that Defendant's counsel would be forced,...

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