383 F.3d 191 (4th Cir. 2004), 03-15, United States v. Lentz

Docket Nº:03-15, 04-7, 04-8.
Citation:383 F.3d 191
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Jay E. LENTZ, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Jay E. Lentz, Defendant-Appellee. In re: Steven D. Mellin, Assistant United States Attorney, Appellant, United States of America, Plaintiff, v. Jay E. Lentz, Defendant-Appellee.
Case Date:September 14, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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383 F.3d 191 (4th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellant,

v.

Jay E. LENTZ, Defendant-Appellee. United States of America, Plaintiff-Appellant,

v.

Jay E. Lentz, Defendant-Appellee. In re: Steven D. Mellin, Assistant United States Attorney, Appellant,

United States of America, Plaintiff,

v.

Jay E. Lentz, Defendant-Appellee.

Nos. 03-15, 04-7, 04-8.

United States Court of Appeals, Fourth Circuit

September 14, 2004

Argued: May 5, 2004.

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ARGUED:

Vincent L. Gambale, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for the United States.

William M. Sullivan, Jr., Winston & Strawn, L.L.P., Washington, D.C., for AppellantMellin.

Michael W. Lieberman, Alexandria, Virginia, Frank Salvato, Alexandria, Virginia, for Appellee.

ON BRIEF:

Paul J. McNulty, United States Attorney, Kevin V. Di Gregory, Acting Chief, Criminal Division, Morris R. Parker, Jr., Assistant United States Attorney, Steven D. Mellin, Assistant United States Attorney, Patricia M. Haynes, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for the United States.

Ryan S. Spiegel, Winston & Strawn, L.L.P., Washington, D.C., for Appellant Mellin.

Frank W. Dunham, Jr., Federal Public Defender, Meghan S. Skelton, Research and Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia, for Appellee.

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge KING joined. Judge MICHAEL wrote an opinion dissenting in part and concurring in part.

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OPINION

TRAXLER, Circuit Judge:

The United States appeals from the district court's grant of Jay E. Lentz's motion for judgment of acquittal on the charge of kidnapping resulting in the death of his ex-wife, Doris Lentz, in violation of the Federal Kidnapping Act, 18 U.S.C.A. § 1201(a) (1) (West 2000). In a separate appeal, the United States challenges the district court's grant of a new trial under Federal Rule of Criminal Procedure 33 based upon the presence of unadmitted items of evidence in the jury room during deliberations, as well as the district court's findings that this extraneous evidence reached the jury as a result of intentional actions on the part of Assistant United States Attorney Steven D. Mellin. In a third appeal, AUSA Mellin challenges the district court's findings regarding his conduct. Lentz has filed a motion to dismiss Mellin's appeal.

For the following reasons, we reverse the district court's judgment of acquittal, vacate the district court's factual findings regarding intentional conduct on the part of AUSA Mellin, and affirm the district court's grant of a new trial. We dismiss the separate appeal of AUSA Mellin as moot, deny the motion to dismiss filed by Lentz as moot, and remand the entire case to a new district court judge for further proceedings.

I. Background

This case involves the alleged kidnapping of Doris Lentz ("Doris") by her ex-husband, Jay Lentz ("Lentz"), and her resulting death. Because we are evaluating the propriety of the district court's grant of a judgment of acquittal to Lentz, we review the evidence in the light most favorable to the government.

Lentz and Doris were married in 1989 and had one child, Julia, who was born in 1991. Lentz was verbally and physically abusive to Doris during the marriage. Acquaintances of Doris testified that they observed bruises on Doris's body on at least two separate occasions prior to the couple's separation in 1993. In addition, a Prince George's County police officer testified that he responded to a domestic violence call on one occasion at the Lentz home and observed bruises on Doris's arms. Doris, in deposition testimony taken during the divorce proceedings, had also testified that Lentz physically assaulted her on three occasions during the marriage.

There was significant testimony that Doris was afraid of Lentz during the marriage and that this fear did not subside after their separation. When Doris first decided to leave the marital home, she asked her Episcopal priest to be present when she told Lentz of her decision. She eventually moved into an apartment in Arlington, Virginia, that provided security, parked in a controlled-access garage, instructed the apartment management not to allow Lentz to proceed past the lobby area when he came to pick up Julia, and generally made arrangements to exchange custody of Julia in public places so as to avoid being alone with Lentz. As recently as the spring of 1996, Doris asked a friend from her church to accompany her to the marital home in Fort Washington, Maryland, where Lentz had continued to live, to pick up Julia because she was afraid to go alone. And a co-worker of Lentz testified that Lentz had told him in 1996 that he had "kicked in [Doris's] front door" because she "had made him mad." J.A. 987.

Although the divorce between the parties became final in 1995, a number of child support, child support arrearage, and marital property distribution issues continued

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to be the subject of highly contested and bitter litigation in the family court. In particular, the marital home had been placed on the market for sale and Lentz and Doris frequently argued about how the proceeds from the sale should be divided. Doris recorded a number of hostile telephone messages and conversations concerning these ongoing issues that were played for the jury's consideration.

In late March 1996, Lentz's employer received a child support order requiring garnishment of Lentz's wages. However, Lentz asked his supervisor to postpone processing of the order within the company to give him some additional time. Two co-workers of Lentz testified that Lentz told them at about this same time that he would kill Doris before he let her have custody of their child.

On Tuesday, April 16, 1996, Doris met Lentz in the lobby of her apartment building in Arlington, Virginia. Lentz was picking up Julia for a visit with Lentz's parents in Indiana. Unbeknownst to Lentz, Doris had asked her friend, Jennifer Rigger, to follow Doris into the lobby and witness Doris's planned attempt to ask Lentz to sign a document pertaining to their ongoing family court litigation. As a result, Rigger witnessed the exchange of Julia and the ensuing conversation concerning Julia's date of return. Rigger testified that Lentz initially expressed frustration because Doris had only packed one suitcase instead of the two that Lentz had given them. Rigger also testified that Lentz told Doris that Julia would return on Tuesday, April 23, exactly one week later.

The evidence indicated that Doris initially believed Lentz would accompany Julia on the trip, and Julia was below the minimum age necessary to fly unaccompanied. However, airline records revealed that Julia flew unaccompanied to Indiana on April 17, under Lentz's false representation that she met the minimum age requirement. The round-trip ticket that Lentz had reserved on April 15, had a scheduled return date of Friday, April 26. On April 16, Lentz changed the return date to Saturday, April 27.

There was also evidence that Doris initially believed that Lentz would return Julia to her on Wednesday, April 24. At noon on Saturday, April 20, however, Lentz left a message on Doris's answering machine asking to change the meeting from Wednesday to Tuesday evening, April 23, between 7:30 p.m. and 8:00 p.m., and asking that Doris confirm that this was acceptable.

On Tuesday, April 23, at about 4:00 p.m., Lentz left the following message for Doris: "Yea Dee, this is, uh, you know, I'm back now ok. It's Tuesday afternoon about 4:00 p.m." Doris's mother, boyfriend, aunt, and friend testified that Doris told each of them she was to pick up Julia at Lentz's home on the evening of April 23. Doris's brown day planner indicated that Lentz and Julia would be returning on that date. 1 In addition, Rigger testified that she and Doris talked by telephone after Doris got home that evening and that Doris ended the conversation at approximately 6:50 p.m., telling Rigger that she had to leave to go pick up Julia at Lentz's home or Lentz would be angry.

There was no eyewitness testimony that Doris arrived at Lentz's home that evening. Telephone records from April 23 indicate that two calls were placed from Lentz's mother's residence in Indiana to

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Lentz's house in Maryland between 10:00 and 11:00 that evening, but Lentz's mother does not recall speaking to Lentz. A six-minute telephone call was placed from Lentz's home to his mother's home a few minutes after 12 a.m. on April 24.

On April 24, at 8:30 a.m., Doris and Lentz were scheduled to appear at a hearing in the family court case. Although scheduled to see Doris two hours later, Lentz left a message on Doris's answering machine at 6:14 a.m., stating that his mother had rescheduled Julia's flight and that she would be returning on Thursday, April 25, instead of Saturday, April 27. Lentz appeared at the 8:30 a.m. hearing with his attorney, but left after a short time. Doris's attorney also appeared, but Doris did not. Lentz appears to have returned to his home, where another telephone call took place between his home and his mother's home in Indiana. Lentz's coworker, Sherrie Roske, testified that Lentz arrived at work after noon that day, looking disheveled, with bags under his eyes. In the meantime, Lentz's parents had changed Julia's return date from April 27 to April 25 in order to accommodate their need to travel on business...

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