U.S. v. Moss

• Citation: 591 F.2d 428
• Decision Date: 15 January 1979
• Docket Number: No. 78-1261,78-1261
• Parties: 4 Fed. R. Evid. Serv. 365 UNITED STATES of America, Appellee, v. Hershey MOSS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 428

591 F.2d 428

4 Fed. R. Evid. Serv. 365

UNITED STATES of America, Appellee, v. Hershey MOSS, Appellant.

No. 78-1261.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1978.

Decided Jan. 15, 1979.

David C. Godfrey, Clayton, Mo., for appellant.

Terry I. Adelman, Asst. U. S. Atty. (argued), and Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief, for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and BRIGHT, Circuit Judges.

VAN OOSTERHOUT, Senior Circuit Judge.

Hershey Moss appeals from his jury conviction on one count of conspiracy to kidnap for the purpose of murder in violation of 18 U.S.C. § 1201, seven counts of mail fraud in violation of 18 U.S.C. § 1341, and eleven counts of wire fraud in violation of U.S.C. §§ 1343 and 2. Moss received consecutive two-year sentences on each of the fraud counts to run concurrently with a life sentence on the conspiracy count. We affirm in part and reverse in part.

Viewed in a light most favorable to the Government, the evidence established the following facts. In February 1977, the defendant approached his neighbor, Steve Carter, to discuss the possibility of acquiring some insurance in connection with the corporation Moss was forming. The corporation, Kandy Kane Productions, Ltd., was to be in the business of staging motorcycle thrill shows across the country. Its star performer and main money-maker would be Maurice Smith, whom Moss described as the Midwest jumping champion with over eight years of experience. Smith was to be billed as the black Evil Knievel. Moss told Carter that he wanted one million dollars worth of insurance on the life of Smith with the corporation as the principal beneficiary. Moss agreed to allow Carter, who was an insurance agent for the Frank B. Hall Insurance Company in St. Louis, to attempt to place the "key man" insurance on Smith's life.

After calling the proposed insured at his residence in Chicago to obtain preliminary underwriting information, Carter made inquiries with the insurance carriers with which his company had a close working relationship to see whether they would entertain underwriting the risk. Carter also utilized the services of another brokerage firm, the Strauss Fuchs Organization (SFO) in Kansas City, Missouri. SFO acted as a correspondent for various insurance carriers which would occasionally underwrite high-risk insurance. Carter dealt with these carriers indirectly through the offices of SFO.

Initial efforts to place the insurance were not successful. ¹ Moss was particularly concerned about obtaining the insurance prior to the weekend of April 22-24, when Kandy Kane staged a motorcycle thrill show in Chicago. Moss lost approximately $168,000 on the show when Smith refused to perform. However, upon his return to St. Louis, Moss told Carter that he had broken even on the event and still wanted Carter to obtain insurance.

On May 15, Carter received a telephone call from a representative of SFO informing him that First Colony Life Insurance Company had tentatively agreed to insure Smith for $500,000. Shortly thereafter, Carter received a letter from SFO which confirmed the offer. Carter spoke with Moss over the telephone and obtained his acceptance of the offer. On May 9, Carter mailed a business reply postcard back to SFO which indicated that the offer was acceptable. (Count Two). On May 25, Carter and Moss travelled to Chicago to meet with Smith and to obtain information for the formal application for life insurance from First Colony. Upon his return to St. Louis, Carter mailed the application to SFO on May 26. (Count Three).

On June 14, Wanda Davis of SFO telephoned Carter and advised him that the policy had been approved and was in issue. Later that day, Davis mailed a letter to Carter to confirm this information in writing. (Count Four). Carter immediately contacted Moss who promptly furnished a check for the quarterly premium which Carter mailed to SFO on June 15. (Count Five). Carter received the letter of confirmation from Davis on June 16.

On June 20, Joan Welch of SFO mailed the actual insurance policy to Carter. Accompanying the policy was a letter which indicated that the policy was issued with a delivery requirement that Moss and Smith had to sign an amendment to the application. Carter arranged for the two men to sign the amendment and had it mailed to SFO on June 15. (Count Seven). ² Further efforts to acquire additional insurance were discontinued upon Moss's request.

During July and August, Moss and Maurice Smith had a number of telephone conversations during which Smith threatened to leave Kandy Kane. In order to keep Smith with the corporation until he could be killed for the insurance proceeds, Moss began sending him various amounts of money. From September 7 to October 26 Moss wired money to Smith in Chicago on eleven occasions (Counts Eight-Fifteen, and Seventeen-Nineteen), some of which were to finance Smith's bus trip to St. Louis on October 27. Moss had told Smith to come to St. Louis to practice for a tour of Japan which Kandy Kane was planning.

On October 25, Lt. Kenrick Dempsey, a police officer for the city of Overland, Missouri, received a telephone call from the defendant whom he had known for almost eight years. Initially, the defendant inquired whether Dempsey did any work "on the side." In a subsequent telephone call that evening, the defendant asked Dempsey to kill someone for him within the next couple of days. The following day, Dempsey received another phone call from the defendant during which details were discussed as to weapons, location, price, and Moss's insistence on accompanying Dempsey during the planned murder. The two men arranged to meet the next day. Dempsey reported these conversations to his superior, and the FBI was notified.

On October 27, Dempsey met with an FBI agent who agreed to observe the meeting between Moss and Dempsey. At this meeting, Moss told Dempsey that he wanted Maurice Smith killed in order to collect the proceeds of an insurance policy on Smith's life. Moss explained that he wanted Smith killed in East St. Louis, Illinois, because "dead niggers" were not investigated there. It was agreed that the two men would meet Smith when he arrived that night at the bus station. There, Dempsey would simulate placing Smith and Moss under arrest and drive them into Illinois where Smith was to be shot and killed.

Dempsey left Moss and met with FBI agents to whom he related Moss's plan. The agents equipped Dempsey with a body recorder and an automobile which contained another recording device. The agents also instructed Dempsey that they would "close in" on Moss when Dempsey simulated the arrests. That evening, Dempsey met Moss and drove him to the bus station where they waited for Smith to arrive. Their conversations were recorded. The men waited for almost two hours but Smith failed to appear. Before departing, Dempsey agreed to call Moss the next morning.

The next day, Dempsey reported to the FBI office and met Maurice Smith who had arrived in St. Louis on a later bus. Smith had been met by FBI agents who apprised him of his predicament and obtained his consent to participate in a staged killing. After both Dempsey and Smith telephoned the defendant, they accompanied the agents to a location in East St. Louis and rehearsed the staged killing. Upon returning to the FBI office, the two men telephoned Moss once again.

The FBI agents then took Smith to the St. Louis Library where he had arranged to meet Moss. Dempsey picked up Moss, drove to the library and staged the arrests. Dempsey then drove both men across the state line and staged the killing of Smith. On the drive back to St. Louis, Moss told Dempsey that he was going to call his attorney, Bernard Steinger, to see whether he could provide him with an alibi for the time of the killing. Moss was arrested by the FBI later that afternoon.

I. Admissibility of Tape Recordings.

With the consent of Lt. Dempsey and Maurice Smith, the FBI made tape recordings of conversations that these men had with the defendant on October 27 and 28, 1977, the days before and of the staged murder. The tape recordings were played before the jury over defendant's objection. Defendant argues that no proper foundation was laid for the admission of these recordings into evidence because the FBI agent in charge of the monitoring admitted that he failed to check the recording equipment to ascertain its capacity of picking up sound. This contention is without merit.

This court set out the foundational requirements for the admission of evidence obtained by electronic surveillance in United States v. McMillan,508 F.2d 101, 104 (8th Cir. 1975). ³ As we recently stated, the purpose of the McMillan foundational requirements

is to insure that only competent and reliable tape recording evidence adverse to an accused is allowed to go before the trier of fact. These requirements do not, however, exist In vacuo ; they become meaningful only when viewed in light of the facts of a specific case.

Durns v. United States, 562 F.2d 542, 547 (8th Cir. 1977). Here, the very fact of the existence of the tape recordings establishes that the recording devices were capable of picking up sounds. Furthermore, both Dempsey and Smith reviewed the recordings and testified that the tapes accurately and fully portrayed their conversations with the defendant. We hold, therefore, that the Government sufficiently complied with the McMillan foundational requirements and that the trial court properly admitted the tape recordings into evidence.

Moss also contends that the tape recordings should not have been admitted into evidence because the Government did not affirmatively prove that the FBI had received authorization from the Attorney General for the consensual monitoring of defendant's conversations. Defendant requests that we remand the case to the trial court for a ruling on this issue which was not...