U.S. v. Cardwell

• Decision Date: 30 December 2005
• Docket Number: No. 03-4835.,No. 03-4585.,03-4585.,03-4835.
• Citation: 433 F.3d 378
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Wayne CARDWELL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Leo Hinson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

433 F.3d 378

UNITED STATES of America, Plaintiff-Appellee, v. John Wayne CARDWELL, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Leo Hinson, Defendant-Appellant.

No. 03-4585.

No. 03-4835.

United States Court of Appeals, Fourth Circuit.

Argued September 19, 2005.

Decided December 30, 2005.

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ARGUED: Craig Weston Sampson, Richmond, Virginia; Randy Virlin Cargill, Magee, Foster, Goldstein & Sayers, P.C., Roanoke, Virginia, for Appellants. Thomas Ernest Booth, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Thomas K. Maher, Chapel Hill, North Carolina, for Appellant Leo Hinson. John L. Brownlee, United States Attorney, Donald R. Wolthuis, Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before WILLIAMS and MICHAEL, Circuit Judges, and JAMES C. DEVER III, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed in part; vacated and remanded in part by published opinion. Judge WILLIAMS wrote the opinion, in which Judge MICHAEL and Judge DEVER joined.

OPINION

WILLIAMS, Circuit Judge.

Leo Hinson and John Cardwell were convicted on various murder-for-hire charges. In addition, Hinson was convicted on a felon-in-possession charge, which was tried at the same time as the other counts. Hinson and Cardwell were each sentenced based, in part, on facts found by the judge. On appeal, Hinson argues that the district court erred in denying his motions to sever and to suppress, Cardwell argues that the evidence was insufficient to sustain his convictions, and both men argue that their sentences violate the Sixth Amendment.

For the following reasons, we hold that the district court did not err in denying Hinson's motions to sever and to suppress, that the evidence was sufficient to sustain Cardwell's convictions, and that the district court, which did not have the benefit of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 750-51, 160 L.Ed.2d 621 (2005), plainly violated the Sixth Amendment in mandatorily enhancing Hinson's and Cardwell's sentence based on judge-found facts. We therefore affirm Hinson's and Cardwell's convictions, and, because the district court's sentencing error seriously affects the fairness, integrity or public reputation of judicial proceedings, we vacate their sentences and remand for resentencing.

I. Factual Background

In the fall of 1999, federal and state law enforcement agents in the Eastern District of North Carolina began investigating Hinson and Eric Brown on suspicion of drug trafficking. After being contacted by the agents and informed of the investigation, Brown agreed to cooper-ate in the investigation of Hinson. At the agents' direction Brown met with Hinson and recorded their conversations on three separate occasions in the fall of 2000. Hinson, however, was guarded in these discussions and did not incriminate himself. Hinson later learned of Brown's cooperation with the authorities.

Thomas Cole was a methamphetamine dealer. He was familiar with both Hinson and Cardwell, having attempted to sell Hinson and Card-well methamphetamine at some time in the past. In the summer of 2001, Cole was arrested in the Western District of Virginia on unrelated drug trafficking charges and found in possession of documents linking him to Hinson. Like Brown, Cole agreed to assist agents in their investigation of Hinson.

Cole contacted Cardwell to arrange a meeting with Hinson, to whom he proposed to give helpful information about the investigation. On October 23, 2001, the three men met in a restaurant in Danville, Virginia. Cole recorded the conversation. Hinson complained of his legal troubles, focusing in particular on Brown. Cole asked if Hinson could "get to" Brown. (J.A. at 367.) Hinson said that Brown needed to be killed, and Cole indicated he would be willing to do it. Hinson asked Cole his price, and Cole said he would do the job for $25,000. Hinson offered him $50,000 and informed Cole he would need to kill Brown's wife as well. The men agreed that Cardwell would give Cole a picture of the Browns and the Browns' address so Cole could carry out the murder.

Over the next few months, Cole and Cardwell spoke several times. In these conversations, the two men had coded conversations from which a reasonable juror could have inferred that Hinson had drugs he was willing to sell Cole. More importantly, they also discussed the Browns. Cardwell assured Cole that Hinson was "serious" about killing the Browns and agreed to be the "middleman" in the deal, (J.A. at 393, 536), because Hinson was nervous about dealing with Cole directly due to the North Carolina investigation against him and what he thought was Cole's ongoing drug trafficking. In his duty as middleman, Cardwell agreed to deliver the money from Hinson to Cole after Cole killed the Browns.

Cardwell, however, never arranged any drug deals between Hinson and Cole, nor did he give Cole the Browns' picture and address. The agents became frustrated with the investigation and instructed Cole to bypass Cardwell and instead attempt to deal directly with Hinson.

On January 29, 2002, Cole and Hinson met at Hinson's home to discuss potential drug deals and the plan to murder the Browns. Hinson instructed Cole to carry out the murders, described the Browns to Cole, provided a way for him to find them, and gave him $1,000 in traveling money. Agents later arranged for a newspaper in the town where the Browns lived to run a false story about the Browns' disappearance. On February 7, 2002, Cole brought the article to Hinson, who, after expressing his satisfaction, burned it to conceal evidence of his link to the (assumed) murders. At that time, Hinson paid Cole $4,000, and agreed to pay some of the balance of the $50,000 by giving him a kilogram of cocaine.

Later that evening, sometime between 11:00 p.m. and midnight, Agents High and Sheetz of the Drug Enforcement Administration in Roanoke, Virginia, (the Agents) executed a search warrant of Hinson's residence. When the Agents arrived at Hinson's residence to arrest him, they knocked and announced their presence several times before Hinson came to the door. When Hinson opened the door, he was immediately arrested and told he was under arrest for his participation in the murder-for-hire collusion. Once in custody, Hinson was advised of all his rights and he stated that "he understood [them]." (J.A. at 556.) He did not, however, specifically invoke any of his rights. The Agents searched Hinson's house and discovered a loaded gun.

Fifteen to twenty minutes after the arrest, the Agents transported Hinson to Roanoke City Jail, which was approximately two hours away. Hinson was handcuffed with his hands in front of him and placed in the front seat of the Agents' car. An hour-and-a-half or so into the drive, Hinson began talking about farming, and continued to talk for about twenty-to-thirty minutes. As the car approached Roanoke, Agent High asked Hinson why he had not immediately come to the door when they announced their presence. Hinson stated, "if I knew [sic] it was the police, I would have gotten a gun," and "there would have been a gunfight [because I would] rather be killed than go to jail." (J.A. at 560, 622.)

II. Procedural History

Hinson and Cardwell were charged in the United States District Court for the Western District of Virginia with (1) solicitation to commit murder, 18 U.S.C.A. § 373 (West 2000), (2) attempted murder of a government witness, 18 U.S.C.A. § 1114 (West 2000), (3) witness tampering, 18 U.S.C.A. § 1512(a)(1)(A) (West 2000), (4) retaliating against a government witness, 18 U.S.C.A. § 1513(a)(1)(B) (West 2000), and (5) conspiracy to murder a government witness, 18 U.S.C.A. § 371 (West 2000) (collectively, the murder-for-hire counts). In addition, Hinson was charged with being a felon in possession of a gun, 18 U.S.C.A. § 922(g)(1) (West 2000). Hinson moved to sever the gun count from the murder-for-hire counts. The district court denied the motion, holding that the counts were related because Hinson's gun possession and involvement in the murder-for-hire cabal were each related to his drug trafficking and that Hinson would suffer no prejudice from the joinder.

At trial, Hinson moved to suppress his statement to Agent High that he would have gotten a gun and started a gunfight if he had known police were at the door. Hinson argued that he had not waived his Miranda rights before giving the statement. The district court denied the motion. The jury convicted Hinson on all counts and Cardwell on the solicitation and conspiracy counts. The district court sentenced Hinson to 293 months imprisonment and Cardwell to 131 months imprisonment.

Hinson and Cardwell now appeal. Hinson argues that the district court erred in denying his motions to sever and to suppress, Cardwell argues that the evidence was insufficient to sustain his convictions, and both men argue that their sentences violated the Sixth Amendment. We have jurisdiction under 28 U.S.C.A. § 1291 (West 1993) and 18 U.S.C.A. § 3742 (West 2000), and consider these arguments in turn.

III. Joinder and Severance (Hinson)

Hinson contends that the district court improperly denied his motion to sever, arguing that (1) the Government improperly joined the gun and murder-for-hire counts in the indictment under Fed.R.Crim.P. 8(a) and, (2) even if joinder was proper, the district court should have severed the gun count from the murder-for-hire counts under Fed.R.Crim.P. 14. The Government argues that (1) the gun and murder counts were properly joined under Rule 8(a) and (2) Hinson was not prejudiced by the district court's failure to sever the counts. Whether offenses in an indictment are improperly joined under Rule 8(a) is a question of law reviewed de novo....