U.S. v. Udey
| Citation | 748 F.2d 1231 |
| Decision Date | 07 November 1984 |
| Docket Number | 83-2654,83-2655,Nos. 83-2615,83-2632,s. 83-2615 |
| Parties | 17 Fed. R. Evid. Serv. 119 UNITED STATES of America, Appellee, v. Ed UDEY, Appellant. UNITED STATES of America, Appellee, v. Arthur H. RUSSELL, Appellant. UNITED STATES of America, Appellee, v. Leonard G. GINTER, Appellant. UNITED STATES of America, Appellee, v. Norma GINTER, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles Karr, Fort Smith, Ark., Joe A. Izen, Houston, Tex., and Michael L. Minns, Katy, Tex., for appellant.
Larry R. McCord, Asst. U.S. Atty., Fort Smith, Ark., for appellee.
Before LAY, Chief Judge, ROSS and FAGG, Circuit Judges.
The appellants, Edwin C. Udey, Arthur H. Russell, Leonard Ginter, and Norma Ginter, were indicted for conspiring to harbor and conceal a fugitive, and for the substantive offense of harboring and concealing a fugitive. They were tried by a jury and convicted on each count. The district court 1 sentenced Udey to five years imprisonment on each count with the sentences to run concurrently. Russell was sentenced to five years on each count, but the period of actual incarceration was to be six months followed by four years probation in lieu of the remainder of the term which was suspended. Leonard Ginter received a sentence of five years on each count with the sentences to run concurrently. Norma Ginter was sentenced to five years on each count, but the sentence was suspended and a five year probation term was imposed instead. The defendants appeal their convictions under 28 U.S.C. Sec. 1291 (West Supp.1984). For the reasons stated herein we affirm the convictions.
On February 13, 1983, a shootout occurred in Medina, North Dakota, which resulted in the death of two United States Marshals. 2 The following day a magistrate The evidence at trial--elicited largely from Karen Robertson, Arthur Russell's daughter--established that on March 13, 1983, Leonard Ginter was introduced to Karen Robertson at Russell's home in Mountain Home, Arkansas. The same day Gordon Kahl moved into the Russell residence where he continued to reside until May 30, 1983. During this period Kahl discussed the North Dakota incident with Russell and Robertson, and they watched television news accounts of the search for Kahl.
issued a warrant for the arrest of Gordon W. Kahl for the murders of the two marshals. Thereafter, on March 11, 1983, another warrant for Kahl's arrest was issued based upon a federal grand jury's indictment charging Kahl with murder. A nationwide manhunt for Kahl ensued, leading law enforcement authorities to the Ginters' residence near Smithville, Arkansas, where another shootout occurred in which Gordon Kahl and a local law enforcement officer were killed.
Udey visited the Russell residence during this period, and on his first visit he referred to Kahl as a hero. Thereafter Kahl visited Udey's residence at least twice. Udey initiated at least one of the visits by inviting Kahl to dinner.
In mid-May 1983, the Ginters visited Russell's residence. Leonard Ginter had an FBI wanted poster of Kahl, which was discussed with Kahl. On May 30, 1983, another discussion with Kahl took place at the Russell residence, where the Ginters, Russell, and Udey were present, regarding the FBI search. Later that day Gordon Kahl moved to the Ginters' residence near Smithville, Arkansas, as the group believed the FBI to be "closing in" on Kahl.
On June 3, 1983, law enforcement authorities went to the Ginter residence in search of Kahl, and a shootout occurred. The Ginters' home was burned down during the shootout. Afterwards, the remains of a mini-14 rifle similar to one that Kahl had at the Russell residence was recovered. Also recovered in a similar condition, was a shotgun belonging to the United States Marshals' office in North Dakota, which was lost in the February 13, Medina shootout. The body of a man burned beyond recognition was also discovered; it was later identified by the Medical Examiner as Gordon Kahl.
The appellants raise several issues on appeal. They are: 1) whether the district court erred in denying Udey's and Russell's motions for acquittal; 2) whether the convictions constitute double jeopardy; 3) whether the district court erred in denying the motions to suppress evidence; 4) whether the district court erred in denying admission of the defendants' expert's testimony; 5) whether the district court erred in not appointing the Ginters the counsel of their choice; 6) whether the district court erred in refusing to admit statements made by the Ginters to the police; and 7) whether Udey's sentence was too harsh.
A. Motions for Acquittal
Russell and Udey allege that the trial court erred in denying their motions for acquittal. Udey claims the evidence failed to show that he had knowledge of the warrant for Kahl's arrest. Russell claims that the evidence failed to establish an act by him of concealing Kahl.
In United States v. Jackson, 680 F.2d 561 (8th Cir.1982), we stated:
When reviewing a denial of a motion for acquittal we examine the evidence in the light most favorable to the government and give the government the benefit of all reasonable inferences that may logically be drawn from the evidence. We will reverse only if a reasonable jury could not have found beyond a reasonable doubt that the elements of the crime existed.
Id. at 563 (citations omitted). See United States v. Michaels, 726 F.2d 1307, 1311 (8th Cir.1984).
In order to prove the violations of 18 U.S.C. Sec. 1071 charged in Counts II and III of the indictment, the government had to establish that: (1) the defendants knew Russell claims that the evidence was insufficient to support his conviction because it did not establish that he concealed Gordon Kahl. In this case the evidence overwhelmingly established that Russell knew a federal warrant had been issued for Kahl's arrest. The testimony showed that he had discussed the FBI wanted posters with Kahl and others. With the knowledge of the outstanding warrants, Russell allowed Kahl to stay in his home thereby concealing Kahl from the law enforcement agencies that sought his arrest. He instructed his daughter, who eventually turned Kahl in, to remain silent about the fugitive's presence and identity. On these facts we believe the jury could reasonably have inferred Russell's intention to prevent Kahl's discovery. Accordingly, his motion for acquittal was correctly denied.
that a federal warrant had been issued for Kahl's arrest; (2) the defendants harbored or concealed Kahl; and (3) the defendants intended to prevent Kahl's discovery and arrest. See United States v. Hash, 688 F.2d 49, 52 (8th Cir.1982); United States v. Bissonette, 586 F.2d 73, 77 (8th Cir.1978). Knowledge of the existence of the warrant is an equally essential element of conspiring to harbor or conceal in violation of 18 U.S.C. Sec. 371, as charged in Count I of the indictment. See United States v. Hogg, 670 F.2d 1358, 1361 (4th Cir.1982). Direct proof of knowledge of the existence of a warrant is rarely available. Rather, the knowledge element can be established by evidence from which the jury can properly infer knowledge and guilt beyond a reasonable doubt. See Bissonette, supra, 586 F.2d at 77. Additionally, in order to prove a violation of 18 U.S.C. Sec. 371, the government had to prove: (1) the defendants entered into an agreement; (2) the agreement had as its objective a violation of the law, and (3) that one of those in agreement committed an act in furtherance of the objective. Michaels, supra, 726 F.2d at 1310-11. Once the existence of the conspiracy is established, "even slight evidence connecting a particular defendant to the conspiracy may be substantial and therefore sufficient proof of the defendant's involvement in the scheme." Id. at 1311 (citations omitted)
Udey claims that the evidence failed to establish that he had knowledge of the existence of the warrant for Kahl's arrest. The appellant concedes that the evidence established that he met Gordon Kahl at Russell's home, referred to him by his alias name "Curly," and called him a hero. The evidence also established that Kahl visited Udey's home on at least two occasions. Nonetheless, Udey argues that the evidence failed to show that he knew Kahl's true identity, or that a warrant was outstanding for his arrest. The appellant alleges that the evidence was so scant that it allowed the jury merely to speculate, and that the jury must have had a reasonable doubt as to his guilt. See United States v. Frol, 518 F.2d 1134, 1137 (8th Cir.1975).
While the evidence with regard to Udey's guilt was not overwhelming, neither was it merely speculative. At a minimum it was sufficient to allow the issue to be presented to the jury which could properly have inferred "knowledge and guilt beyond a reasonable doubt." Bissonette, supra, 586 F.2d at 77. In addition to the circumstantial evidence discussed above, Karen Robertson testified that Mr. Udey was present during a May 30th discussion pertaining to the FBI closing in on Kahl; she specifically recalled seeing Udey's car.
Q. Let's move on into May 30th, Memorial Day of this year, which you testified was the day Gordon Kahl left the residence. Do you recall that day?
A. Yes, Sir.
Q. Would you describe to the jury the facts and circumstances of his departure, his leaving your house?
A. I had some stuff in the back of my pickup that I needed to unload and Mr. Ginter and Ed Udey were at the house and I went to get gas and unload the pickup. And when I was leaving, they all went into the motor home to talk.
Q. Now, when you say, "they all went in the motor home to talk," name the people you're talking about, please.
A. Mr. Kahl and Mr. Ginter and, I...
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