U.S. v. Vowiell

Decision Date16 December 1987
Docket NumberNo. 87-1039,87-1039
Citation869 F.2d 1264
Parties27 Fed. R. Evid. Serv. 1420 UNITED STATES of America, Plaintiff-Appellee, v. Darryl VOWIELL, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Manton L. Selby, San Francisco, Cal., for defendant-appellant.

Mark N. Zanides, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before FLETCHER, WIGGINS and NOONAN, Circuit Judges.

ORDER

The slip opinion filed May 5, 1988 is withdrawn;

This Opinion and dissent are hereby filed in its place;

The petition for rehearing filed with respect to the opinion filed May 5, 1988, is rejected as moot;

No further petitions for rehearing will be entertained with respect to this opinion. The mandate shall issue immediately.

SO ORDERED.

OPINION

WIGGINS, Circuit Judge:

Darryl Vowiell appeals his convictions for offenses stemming from the escape of three federal prisoners. Vowiell claims that the district court erred in admitting the statement of a coconspirator and in giving an ambiguous jury instruction. We REVERSE and REMAND for a new trial.

I. FACTS AND PROCEEDINGS BELOW

On April 16, 1986, Rodney Murdoch, Sylvia Brown and Shelley Bosch cut through a fence and escaped from the Federal Correctional Institute at Pleasanton, California. David Record met the escapees just outside the fence. Record dropped Murdoch off in San Francisco and drove the two women to Morgan Hill, California, to meet Robert Shutte (aka "B.J."). Shutte did not appear, so Bosch and Brown stayed with Record for two days in San Jose. On April 19, Shutte picked up the women at the prearranged Morgan Hill location and drove them to Bakersfield. Bosch and Brown left Bakersfield one and a half days later on the morning of April 21. All three escapees were subsequently apprehended, tried, and convicted.

According to the evidence presented at trial, Darryl Vowiell, a prisoner at Pleasanton, assisted and conspired to assist in the escape. Murdoch testified that Vowiell offered to obtain bolt cutters, helped arrange for a getaway car and driver, and identified David Record (the driver) to Murdoch while Record was visiting his sister Kathy, another inmate at Pleasanton, California. Kathy had sent David a postcard asking him to visit her. She then gave him written instructions and a map when he visited her at the prison. Murdoch agreed to pay Vowiell $1,000 for his assistance. Murdoch was to send the money to Randy Whittington in Oildale, California. Randy was the nephew of Billy Ray Whittington. Billy Ray was an inmate at Pleasanton, a good friend of Vowiell's, and a former roommate of Murdoch's. Murdoch also testified that Vowiell asked him to include Shelley Bosch, Vowiell's girlfriend, in the escape.

Billy Ray Whittington corroborated much of Murdoch's testimony regarding Vowiell's involvement in planning the escape. Billy Ray testified that he heard Vowiell and Murdoch discuss the bolt cutters and the getaway car. Billy Ray also helped to arrange for his nephew Randy to receive the money for Vowiell.

David Record also testified for the government. Over defense objection he stated that on April 20, four days after the escape, his sister Kathy told him that:

Darryl [Vowiell] said that things were hot; they were smoking, the Feds were swarming around, and to get in touch with B.J. and get the girls out of there as soon as possible.

David Record then called Shutte to warn him to get the girls out of Bakersfield. Brown and Bosch left the next morning.

On June 13, 1986, a federal grand jury indicted seven persons for offenses related to the escape. Murdoch, Brown, and Bosch were charged with escape. Vowiell, Kathy Record, and David Record were charged with assisting the escape in violation of 18 U.S.C. Sec. 752 1 and conspiracy to assist the escape in violation of 18 U.S.C. Sec. 371. 2 Shutte was charged with conspiracy and Shutte and David Record were charged with harboring an escapee in violation of of 18 U.S.C. Sec. 1072. 3 All defendants except Vowiell and Shutte pled guilty. Vowiell was convicted after a jury trial of assisting the escape [Count III] and with conspiracy to assist the escape [Count II]. Vowiell was sentenced to one year on each count, the sentences to run consecutive to each other and consecutive to the sentence he was already serving. Vowiell timely appealed. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II. ANALYSIS

Vowiell claims that the district court erred in admitting his alleged statement that the escapees needed to leave Bakersfield. Vowiell allegedly gave this information to Kathy. She relayed it to David Record who testified at trial. The district court ruled that the statement was admissible as a coconspirator statement under Fed.R.Evid. 801(d)(2)(E). The court found that the statement was made during the conspiracy because harboring is part of the escape process and that for so long as the harboring continues and the prisoners are at large, the escape is not totally complete. Vowiell argues that his statements were not made in the course of and in furtherance of the conspiracy because immediate pursuit had ended and the fugitives were in a place of temporary safety.

In addition, Vowiell argues that the district court gave an erroneous jury instruction on assisting an escape that warrants reversal.

A. Admission of the coconspirator statement

The standard for review of a district court's ruling that a statement was made in furtherance of a conspiracy depends upon whether that ruling is challenged for its factual findings or its legal conclusions. In Bourjaily, the Supreme Court looked at whether the district court's factfinding regarding the existence of a conspiracy and the defendant's involvement in it was clearly erroneous. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987). In this case, however, the district court engaged in more than pure factfinding; the court made a legal conclusion about when a conspiracy to assist an escape ends. Thus, the district court's decision involved a mixed question of law and fact which this court reviews de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Under this de novo standard, we find that the district court erred in admitting David Record's testimony.

David Record's testimony related two out-of-court statements. The first is the statement by Vowiell to Kathy Record that "things were hot." This statement is not hearsay because it was not offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c). It was irrelevant at Vowiell's trial whether or not Vowiell was correct that "things were hot" and the Feds actually "were swarming." The statement was offered simply to show Vowiell's knowledge of and participation in the escape plans. The second statement is Kathy's statement to David that Vowiell had given her the warnings. This out-of-court statement was only probative if true--i.e., if Vowiell actually told Kathy to instruct Shutte to get the girls out of Bakersfield. David's testimony regarding Kathy's statement was thus only admissible if it fell within a category making it nonhearsay or within an exception to the hearsay rule.

Under Fed.R.Evid. 801(d)(2)(E), the statement of a coconspirator is not hearsay if made "during the course and in furtherance of the conspiracy." Before admitting the statement, the court must determine by a preponderance of the evidence that there was a conspiracy between the declarant and the nonoffering party, and that the statement was made "in the course of and in furtherance" of the conspiracy. Bourjaily, 107 S.Ct. at 2779.

Vowiell asserts that the statements he allegedly made to Kathy Record four days after the escape do not fall within the scope of Rule 801(d)(2)(E). He contends that the statements were not "in furtherance of" or "during the course of" the conspiracy to assist the escape because the conspiracy terminated when Bosch and Brown reached Shutte's residence in Bakersfield. Although Vowiell incorrectly focuses on his statements, rather than Kathy Record's, we agree with his analysis. Both Vowiell and Kathy were involved in the same conspiracy. It ended when the fugitives reached temporary safety.

The general rule, as set forth by the Supreme Court in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), is that extra-judicial statements are not admissible against the nondeclarant if made after the chief objective of the conspiracy had ended either in success or failure. Id. at 442-43, 69 S.Ct. at 717-18; see also Atkins v. United States, 307 F.2d 937, 940 (9th Cir.1962). We must determine, therefore, whether Kathy's effort to protect the escapees' concealment was done in furtherance of the main criminal objective of the conspiracy to assist the escape, or only to cover up after the crime.

Congress has distinguished the crime of assisting an escape from that of harboring or concealing an escaped prisoner. Compare 18 U.S.C. Sec. 752 with 18 U.S.C. Sec. 1072. Kathy Record was charged with assisting and conspiring to assist the escape; she was not charged with harboring/concealing or conspiring to harbor/conceal the escapees. The crime of aiding an escape terminates once the escapee has reached temporary safety: "When the physical control has ended by flight beyond immediate active pursuit, the escape is complete. After that aid to the fugitive is no longer aiding his escape." Orth v. United States, 252 F. 566, 568 (4th Cir.1918); 4 see Wharton's Criminal Law and Procedure Sec. 1370 (1957) (assistance after completion of escape makes one guilty as an accessory after the fact and not as a party to the offense of escape); 4 Wharton's Criminal Law Secs. 664-665 (1981) (emphasizing departure, rather than absence, from...

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