U.S. v. McKinney

Citation954 F.2d 471
Decision Date01 May 1992
Docket NumberNo. 90-1171,90-1171
Parties35 Fed. R. Evid. Serv. 128 UNITED STATES of America, Plaintiff-Appellee, v. William K. McKINNEY, also known as Puppet, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Richard H. Lloyd, Asst. U.S. Atty. (argued), Office of U.S. Atty., Criminal Div., Fairview Heights, Ill., for plaintiff-appellee.

William Hardy (argued), Hinshaw & Culbertson, Springfield, Ill., for defendant-appellant.

Before COFFEY, RIPPLE and MANION, Circuit Judges.

MANION, Circuit Judge.

William "Puppet" McKinney appeals his conviction for conspiring to commit murder. We affirm.

I.

In 1983, William McKinney was an inmate at the United States Penitentiary at Marion, Illinois. McKinney was also a member of the Aryan Brotherhood, a rather notorious prison gang. See, e.g., United States v. Fountain, 840 F.2d 509 (7th Cir.1988), Gometz v. Henman, 807 F.2d 113 (7th Cir.1986), and United States v. Silverstein, 732 F.2d 1338 (7th Cir.1984), all detailing the exploits of various members of the Aryan Brotherhood. The Aryan Brotherhood began in the 1960's in the California prison system as a means of protecting white inmates from other prison gangs. Through the years, however, the group expanded into the federal prison system and became less interested in protection than in more profitable activities such as drug dealing and extortion, activities frequently pursued by violent means.

Gregory "Buzzard" Keefer was also an inmate at Marion. Keefer lived in the same cell unit and range as McKinney. 1 Keefer was not an Aryan Brotherhood member. However, Keefer associated with Aryan Brotherhood members, and performed tasks for the members such as making knives and assisting them in their drug dealing. Despite McKinney's Aryan Brotherhood membership and Keefer's close association with the group, relations between McKinney and Keefer were (to put it mildly) not good; indeed, according to several government witnesses, McKinney hated Keefer. According to the testimony of government witnesses, this animosity developed from several incidents between the two. Inmate Ernest Barcomb testified that on one occasion, he saw another inmate attempt to throw a sock filled with balloons of marijuana out of a cell block window to McKinney, who was in the prison recreation yard during his unit's recreation period. The throw was misguided, the sock ended up behind a fence, and McKinney was unable to retrieve it with his hands. McKinney tried to retrieve the sock with a stick but abandoned the effort when his unit was called to go inside. But Keefer, who was with McKinney, tried to retrieve the sock and was caught by two prison staff members. The staff members confiscated the marijuana.

Other events also contributed to McKinney's enmity toward Keefer. McKinney was upset by an incident in which a black inmate had "disrespected" Keefer by refusing to pay him money he owed for drugs. One inmate testified that disrespect was an event punishable by death at Marion; the disrespect reflected not only on Keefer but also on the Aryan Brotherhood because of Keefer's association with the group. McKinney was also upset when Keefer sold McKinney's knife to a member of the Mexican Mafia (another prison gang allied with the Aryan Brotherhood) in exchange for drugs. Both McKinney and Barry Mills, the Aryan Brotherhood's acknowledged leader, previously had told Keefer not to engage in such transactions. Keefer had also stolen or misplaced drugs belonging to the Aryan Brotherhood.

Keefer's behavior did not anger just Aryan Brotherhood members. Frank Mercado, a Mexican Mafia member, testified that in June or July 1983, Keefer refused to pay him for heroin he had supplied. Mercado, who would be held responsible for the payment by the Mexican Mafia, went to Mills to complain about what Keefer had done. Mercado wanted to kill Keefer; Mills told him to forget about it because there was already a "hit on Buzzard."

Around late September, after learning about the incident with the knife and about some missing drugs, Mills authorized McKinney, who had wanted to kill Keefer for some time, to go ahead. McKinney recruited two other inmates, Stanley Pearson and Robert "Pigpen" Martin, who both lived in McKinney's and Keefer's unit and range, to assist him. Pearson was a young Aryan Brotherhood member who had joined, he testified, after being pressured by other inmates. When first approached by McKinney to assist him, Pearson was not enthused about becoming involved and wanted to talk to Mills first. Pearson testified that several days or so before the actual murder he met with Mills in the prison's recreation yard. Mills told Pearson that he should help McKinney murder Keefer. Mills was persistent, and Pearson finally agreed to help McKinney.

On the evening of September 23, McKinney, Pearson, and Martin carried out their plan to kill Keefer. According to Pearson, he and Martin entered Keefer's cell as if to visit. When Keefer became relaxed, Pearson and Martin grabbed Keefer, pinned him to his bed, and signalled McKinney to enter the cell. McKinney, armed with a knife, entered and began stabbing Keefer repeatedly in the chest, neck, and head. In his frenzy, McKinney accidentally stabbed Martin. McKinney rolled Keefer over and stabbed him in the back until he stopped moving. After the killing was completed, McKinney, Pearson, and Martin spent several minutes cleaning Keefer's cell and wiping blood off the wall. McKinney then laid Keefer's body on its side in the bed and covered it with a blanket up to the neck to make it appear as if Keefer was sleeping. McKinney and Pearson hid their knives behind a fluorescent light.

Martin went to another inmate to have his stab wound stitched up. The stitches did not hold, however, and at around 8:00 that evening Martin told a guard that he had been hurt. This alerted the guards, and they began to check the cells in Keefer's block. When the guards arrived at Keefer's cell and he did not respond, they entered the cell and found Keefer dead in his bed.

The next day, Mills and another inmate, Larry Vaughn (both of whom lived in a different unit from McKinney) walked near McKinney's unit to talk to McKinney through a window in his unit. McKinney told them that he "took care of business." He also told them that Martin had been stabbed accidentally and that Pearson "did good." Pearson came by the window and Mills asked him how he was. Pearson told Mills he was "okay."

Several inmate witnesses testified about admissions McKinney had made to them. Norman Scott, an Aryan Brotherhood associate, testified that McKinney told him he had killed Keefer over a marijuana dispute and because Keefer had been disrespected. McKinney also told Scott about the details of the murder. Ronnie Joe Chriswell, another Aryan Brotherhood associate, testified that McKinney told him he had killed Keefer because Keefer had stolen drugs. Gerald Ben Ulmer testified that McKinney had admitted killing Keefer because Keefer had stolen drugs and sold knives for drugs.

Keefer's murder resulted in a grand jury returning a two-count indictment. Count 1 charged McKinney and Mills with conspiracy to murder Keefer. (The count named Pearson and Martin as unindicted coconspirators.) Count 2 charged McKinney with Keefer's murder. Mills' case was severed from McKinney's. A jury found McKinney guilty of conspiracy to murder Keefer but found him not guilty of murder.

II.

To convict a defendant of conspiracy to commit murder, a jury must find that a conspirator committed an "overt act to effect the object of the conspiracy." 18 U.S.C. § 1117. Count 1 charged the following overt acts:

1. On or about September 16, 1983, WILLIAM K. McKINNEY asked Stanley Pearson to assist him in the murder of Gregory Keefer because Gregory Keefer had stolen drugs from the Aryan Brotherhood, and sold knives belonging to the Aryan Brotherhood.

2. On or about September 19, 1983, Stanley Pearson asked BARRY B. MILLS whether the murder of Keefer had been authorized by the Aryan Brotherhood. MILLS told Pearson it had been authorized and told Pearson to help McKINNEY commit the murder.

3. On or about September 23, 1983, WILLIAM K. McKINNEY, aided and abetted by Stanley Pearson and Robert Martin, murdered Gregory Keefer with premeditation and malice aforethought and by means of stabbing.

4. On or about September 24, 1983, BARRY B. MILLS asked WILLIAM K. McKINNEY whether the murder had been committed and how Stanley Pearson had done. WILLIAM K. McKINNEY told BARRY B. MILLS that the murder had been committed and Stanley Pearson had done well.

The conspiracy's object was to murder Keefer. McKinney argues that the fourth overt act charged--the conversation between McKinney and Mills the day after the murder--could not have been committed to "effect the object of the conspiracy" because Keefer had already been murdered the day before and the conspiracy was therefore over when the conversation occurred. McKinney goes on to argue that we must set aside the jury's verdict because it is impossible to determine if the jury based his conviction solely on the fourth overt act or on some other overt act.

A conspiracy ends when its central criminal purpose has been accomplished. Krulewitch v. United States, 336 U.S. 440, 442, 69 S.Ct. 716, 717, 93 L.Ed. 790 (1949); Grunewald v. United States, 353 U.S. 391, 399-406, 77 S.Ct. 963, 971-75, 1 L.Ed.2d 931 (1957); United States v. Silverstein, 737 F.2d 864, 867 (10th Cir.1984). Generally, a conspiracy to commit murder ends when the murder has been committed. See Silverstein, 737 F.2d at 867. The government argues that the discussion with Mills after the murder was necessarily a part of the conspiracy to commit murder because the murder was done under the Aryan Brotherhood's auspices and the discussion with Mills, the Aryan Brotherhood's...

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