U.S. v. Peacock

• Decision Date: 27 August 1981
• Docket Number: Nos. 79-5238,80-7087,s. 79-5238
• Citation: 654 F.2d 339
• Parties: 8 Fed. R. Evid. Serv. 1603 UNITED STATES of America, Plaintiff-Appellee, v. Hoyle Lamont PEACOCK, Vera Lee Peacock and Harvey Coleman Peacock, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 339

654 F.2d 339

8 Fed. R. Evid. Serv. 1603

UNITED STATES of America, Plaintiff-Appellee, v. Hoyle Lamont PEACOCK, Vera Lee Peacock and Harvey Coleman Peacock, Defendants-Appellants.

Nos. 79-5238, 80-7087.

United States Court of Appeals Fifth Circuit.

Aug. 27, 1981.

Thomas M. Flournoy, Jr., Columbus, Ga., for Hoyle and Vera Peacock.

John C. Swearingen, Jr., Columbus, Ga. (Court-appointed), for Harvey Peacock.

Edgar W. Ennis, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeals from the United States District Court for Middle District of Georgia.

Before RONEY, HILL and FAY, Circuit Judges.

JAMES C. HILL, Circuit Judge:

A jury found beyond a reasonable doubt that Harvey, Hoyle, and Vera Peacock were members of a criminal enterprise that engaged in arson, murder, mail fraud, and obstruction of justice in order to defraud certain insurance companies. The twenty-four count indictment charged the Peacocks with racketeering, 18 U.S.C. § 1962(c) (Count 1), mail fraud, 18 U.S.C. § 1341 (Counts 2-23), and obstruction of justice, 18 U.S.C. § 1510 (Count 24).

Harvey Peacock was found guilty on all twenty-four counts, sentenced to 55 years imprisonment, and fined $16,000. Hoyle was found guilty on Counts 1 and 7-23. He was sentenced to 35 years imprisonment and fined $13,000. Vera was found guilty on Counts 1, 2 and 7-13. She was sentenced to 25 years imprisonment and fined $5,000. The same jury returned special verdicts against each of the defendants requiring them to forfeit $257,055 worth of insurance proceeds that they acquired through their pattern of arson and murder. 18 U.S.C. § 1963(a). The district court's order and judgment of forfeiture was issued as a general money judgment against the defendants.

The defendants raise numerous points on appeal. Essentially, their arguments focus on three points. First, appellants assert the evidence is insufficient to convict them on various counts. Second, appellants contend that both the Confrontation Clause of the Sixth Amendment and the rule against hearsay were violated by the admission of "testimony" from deceased declarants. Third, appellants argue that the forfeiture provisions of the Racketeer Influenced and Corrupt Organizations statute (RICO), 18 U.S.C. § 1963, are not applicable to the insurance proceeds which they acquired. Further, they urge that even if applicable, RICO does not authorize the district court to issue a general money judgment.

With three exceptions, we affirm the jury's verdict. First, the evidence is insufficient to convict Vera Peacock of the arson at 3008 Third Ave. in Columbus, Georgia. Second, the evidence is insufficient to convict Harvey and Hoyle for the murder of Ruth Elaine Peacock. Accordingly, the mail frauds based on the murder, counts 16-23, are reversed. Third, as we are bound by United States v. Martino, 648 F.2d 367 (5th Cir. 1981) we must reverse the district court's forfeiture order. In all other respects, we affirm the jury's verdict.

I. The Peacocks' Scheme

Our presentation of the evidence will follow the structure of the indictment.

A. Count 1: The Racketeering Enterprise

Count 1 charges a violation of 18 U.S.C. § 1962(c). To obtain a conviction under § 1962(c) it must be shown that the defendants conducted the affairs of an enterprise through a pattern of racketeering activity. A pattern of racketeering activity is defined by statute as at least two acts of racketeering activity which occur within ten years of each other. 18 U.S.C. § 1961(5). Racketeering activity is defined as any of a large number of both state and federal crimes which are listed in § 1961(1).

Here, the racketeering enterprise was, in essence, an arson ring. It was comprised of thirteen individuals associated in fact for the purpose of defrauding certain insurance companies. In its pursuit of profit this enterprise allegedly engaged in a pattern of racketeering activity which included ten arsons, one murder, 22 mail frauds, and an obstruction of justice which involved two additional murders. As will be seen, the enterprise's "business methods" reflected a sophisticated level of activity not unlike an efficiently run small business.

1. The Arsons

Section 3(a) of Count 1 charged that on September 12, 1971 Harvey, Hoyle, and Vera Peacock, aided and abetted by one another, and by Ray Peacock, a now-deceased son of Harvey and Vera, burned a house located at 3008 Third Avenue in Columbus, Georgia with intent to defraud the State Automobile Insurance Company. Ga.Code § 26-1504. The city of Columbus fire marshal testified that the cause of the fire was "electrical"; "a penny behind the fuse." On February 19, 1979 Hoyle acquired fire coverage on this house for $8,000. This amount was subsequently paid to both Hoyle and Vera, who held a mortgage on the house. At the time of the fire, Ray Peacock and his wife occupied 3008 Third Avenue. Hoyle subsequently admitted to one Ruth Rhodes that he and his father, Harvey, were responsible for this arson.

In what was to become a well-established alibi pattern, George Cumbie, a named but unindicted member of the criminal enterprise, Hoyle and Ray Peacock and their three wives were on a vacation trip in Panama City, Florida at the time of the fire. Both Harvey and Vera testified that they were babysitting for their granddaughter at the time of the fire.

Neither Harvey nor Hoyle challenge the sufficiency of the evidence to convict them for this arson.

Section 3(b) of Count 1 charged that on June 1, 1972 Harvey, Hoyle, and Vera Peacock burned a house located at 2913 Bradley Circle with intent to defraud the Utica Fire Insurance Company. Harvey and Vera had $25,500 of insurance coverage; $15,500 on the house and $10,000 on the unscheduled personal property. Harvey and Vera were subsequently paid $27,341.81 for their loss. One of Harvey's coconspirators, Butch LeJune, later told another of Harvey's coconspirators, Richard Crane, that Crane should have handled "his fire" like Harvey handled the one at Bradley Circle.

The testimony of the city fire marshal established that the apparent cause of fire was defective wiring. This conclusion was based on the discovery that the main panel had only two thirty amp breakers for a seven room house. Other evidence revealed that George Cumbie, the next door neighbor, found Harvey's sons, Ray and Hoyle, "cleaning" the walls with linseed oil the afternoon before the fire. Harvey and Vera were on a vacation trip to the far West and Mexico at the time of the fire.

Neither Harvey nor Hoyle challenge the sufficiency of the evidence to convict them for this arson.

Section 3(c) of Count 1 charged that on January 21, 1973 Harvey and one Sonny Marion Hobbs, aided and abetted by each other and by Ray Peacock and one Mickey Jerome Miller burned a house at 515 Twenty-second Avenue in Phenix City, Alabama with intent to defraud the State Farm Fire and Casualty Company. Ala.Code § 13-2-20. Hobbs was in the process of buying this home, in which he lived, from Harvey Peacock at the time of the fire. Hobbs worked for Harvey as a truck driver.

Hobbs had acquired $13,000 of coverage on the house itself, and $6,500 on its contents. He collected two checks; one made payable to him for $6,780 and one made payable to both him and Ray Peacock for $12,500. Hobbs and Ray Peacock endorsed both checks.

Mickey Jerome Miller, a named but unindicted participant, testified that Harvey Peacock hired him to burn the 515 Twenty-second Avenue house for $200. Miller later met with Harvey and Hobbs regarding his payment. Harvey was in Lakeland, Florida attending to his trucking business when the fire occurred.

Harvey does not challenge the sufficiency of the evidence to convict him for this arson.

Section 3(d) of Count 1 charged that Harvey Peacock and Sonny Hobbs, aided and abetted by each other, and by Ray Peacock, committed mail fraud in order to obtain the insurance proceeds described in section 3(c) of Count 1. 18 U.S.C. § 1341.

Harvey does not challenge the sufficiency of the evidence to convict him for this mail fraud.

Section 3(e) of Count 1 charged that on February 25, 1973 Harvey and Vera, aided and abetted by each other, and by Clarence Peacock and Mickey Miller burned a house at 3004 Fourth Ave. in Columbus, Georgia with intent to defraud the Interstate Fire Insurance Company. Clarence Peacock, Harvey's father, and Mary Nell Peacock, Harvey's stepmother, were the occupants of this home.

Clarence Peacock had $3,500 of coverage on the house itself, and $3,000 on its contents. Clarence Peacock received checks for his fire losses; one for $3,500 and one for $2,477.81.

The investigation report showed that the fire's apparent cause was the misuse of an electric blanket. However, Mary Nell Peacock testified that she heard her husband, Clarence, and Harvey discussing insurance on the house and that she "expected the house to be burned." She also testified that both Harvey and Vera told her to move clothes and other items out of the house before her trip to Florida. Clarence and Mary Nell Peacock were in Florida at the time of the fire.

Again, Mickey Miller testified that he was hired by Harvey to burn the house for $200. Miller further testified that he poured gas throughout the house before igniting it with a match. Once again, Harvey was on a trip for Watkins Motor Lines, his trucking business, when the fire occurred.

Harvey does not challenge the sufficiency of the evidence to convict him for this arson.

Section 3(f) of Count 1 charged that on December 13, 1973 Harvey, aided and abetted by one A.L. Gravitt, Jr. burned a house at Rural Route 1, Box 329A in Russell County, Alabama. This unfinished and unoccupied house belonged to Jack Hobbs. Harvey's motive for this arson was not money; it was revenge.

Gravitt testified that Harvey wanted to "burn out" Jack Hobbs because of a disagreement regarding payment for certain building materials Hobbs had allegedly acquired...