U.S. v. Moody

• Citation: 977 F.2d 1425
• Decision Date: 06 November 1992
• Docket Number: No. 91-8780,91-8780
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Leroy MOODY, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1425

977 F.2d 1425

UNITED STATES of America, Plaintiff-Appellee, v. Walter Leroy MOODY, Jr., Defendant-Appellant.

No. 91-8780.

United States Court of Appeals, Eleventh Circuit.

Nov. 6, 1992.

Edward D. Tolley, Athens, Ga., for defendant-appellant.

Howard M. Shapiro, U.S. Attorney's Office, S.D.N.Y., New York City, for plaintiff-appellee.

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

Before ERVIN ^*, Chief Judge, HALL ^*, Circuit Judge, and BUTZNER ^*, Senior Circuit Judge.

ERVIN, Chief Judge:

In 1989, Walter Leroy Moody, Jr. sent homemade package bombs to United States Circuit Judge Robert S. Vance in Birmingham, Alabama and civil rights attorney Robert E. Robinson in Savannah, Georgia. The packages detonated upon opening, killing both men. Moody was convicted in the Northern District of Georgia of numerous crimes related to the murders. Moody now appeals his 71 convictions on various grounds. We affirm.

I.

Moody was indicted for the bombings and related activities on November 7, 1990. The entire Northern District of Georgia court recused itself from the case, and Chief Justice William H. Rehnquist designated the late Senior Judge Edward J. Devitt, District of Minnesota, to preside over the case. Judge Devitt granted Moody's motion for a change of venue and transferred proceedings to the District of Minnesota. 762 F.Supp. 1485. Trial began on June 4 and concluded on June 28, 1991.

In the government's case-in-chief, it presented evidence demonstrating the following. In May 1972, a bomb exploded in Moody's residence in Macon, Georgia. The bomb, contained in a package addressed to a car dealer who had repossessed Moody's car, exploded when opened by Moody's wife. Moody was convicted in federal court in Macon for possessing the bomb, although he was acquitted of manufacturing it, and he served three years in federal prison.

Moody eventually became obsessed with overturning his 1972 conviction. He devised an elaborate story to shift the blame to a mythical "Gene Wallace," who Moody had claimed at trial had been attempting to assist him in regaining possession of his car and was responsible for the bomb. Moody recruited a witness to substantiate his account, a destitute, young handicapped woman, Julie Linn-West, and he paid her in small monthly installments as she learned her fabricated story. Moody petitioned for a Writ of Error Coram Nobis, seeking to overturn his 1972 conviction. A district court denied his petition and then this court, by a panel of Judges Kravitch, Morgan and Cox, affirmed the denial in June 1989. This court denied rehearing en banc in August 1989.

Soon after this court denied Moody's appeal, as the government aptly states in its brief, "Moody began to prepare to do battle with the Eleventh Circuit Court of Appeals." Brief at 6. Moody first attempted to produce deadly war gases. Moody dispatched his girlfriend, later wife, Susan McBride, whom he had physically and emotionally abused for over nine years, on a series of journeys to purchase the items needed. Moody was unsuccessful in producing the gases, and instead constructed and mailed a tear-gas package bomb to the NAACP Regional Office in Atlanta. The bomb exploded on August 21, 1989 and engulfed NAACP employees in clouds of choking gas. That day Moody sent out a "Declaration of War" to this court and television stations across the country. These letters accused this court of deliberate misconduct and "rank bias," and threatened poison gas attacks against American cities.

Emboldened by his bombing, Moody began constructing explosive devices for use against this court and others in the fall of 1989. He again sent McBride on various missions and was able to get his friend Ted Banks, in Titusville, Florida, to do the basic metalwork that was required to construct the pipe bombs to Moody's precise specifications. Moody constructed four powerful package bombs.

On December 14, 1989, Moody sent the first package to Judge Vance's home in Mountainbrook, Alabama. This package bore the return address of Judge Vance's colleague, Judge Lewis Morgan. Over the next two days, Moody sent bombs to the Jacksonville Branch of the NAACP, Robert E. Robinson, and this court's Clerk's Office. The first bomb detonated late in the afternoon of December 16, when Judge Vance opened the box addressed to him. Judge Vance was killed almost instantly; his wife, Helen Vance, was seriously injured by the blast. Two days later, Mr Robinson detonated the second bomb; he lingered in agony for several hours before succumbing to his wounds. An alert security officer intercepted the third bomb at the Court of Appeals building in Atlanta, and employees at the Jacksonville NAACP did not open the fourth bomb because they had heard about the other bombings.

Moody then mailed letters threatening assassinations in the name of a fictitious anti-black organization, "Americans For a Competent Federal Judicial System," to each judge of this court; Martelle Layfield, the recently deceased editor of the ABA Journal; the Jacksonville NAACP; and Brenda Wood, an Atlanta television news anchor.

Moody told his wife, after seeing a news report concerning the bomb that injured Maryland state judge John Corderman on December 22, 1989, "I didn't do that one," or "That one is not mine." F19-1501. A few months later, agents electronically taped Moody when he said to himself, "Now you've killed two.... Now you can't pull another bombin'...." GX 1078.

The government's investigation determined that only one pipe bomb in all its records matched the characteristics of the four mail bombs in this case by containing end plates secured by threaded rods or bolts in a box designed for mailing: the one recovered from Moody's residence in 1972. FBI explosive expert Special Agent James T. Thurman concluded that the four package bombs and the 1972 bomb were made by the same person. On February 15, 1990, federal agents recovered a pipe bomb, the "Chamblee device," in a previous Moody residence. Agent Thurman stated that this bomb was, in all probability, a transition device between the 1972 and 1989 bombs.

Moody took the stand as his only witness for four days of narrative testimony. Moody reviewed and contested his 1972 conviction, again maintaining that "Gene Wallace" had placed the bomb in his home. Moody confessed that his attempt to overturn this conviction was based on falsified evidence. Moody testified that the experiments he was conducting in his two home workshops were his attempts to replicate the recent cold fusion experiment, and that the Chamblee device was a homemade assembly for a paint spray gun. Moody said he had never heard of Judge Vance or Robert Robinson, and that his former attorney, Michael Ford (who had been Mr. Robinson's law partner), had admitted to his own involvement in the mail bombings. Moody said that he did not arrive in the Atlanta area until 10:30 p.m. on December 16, 1989, so he could not have mailed the bombs.

The government called 15 witnesses in a single day of rebuttal testimony. Michael Ford returned to the stand and vehemently denied having anything to do with the mail bombings. Two witnesses, responding to Moody's claims to be non-violent, testified that Moody had attempted to murder them in 1982. A professor of physics testified that Moody's claim regarding cold fusion made no sense. A former paint shop operator testified that the Chamblee device could not be a paint spray gun. Finally, a former gas station attendant testified that her initials were on a gas receipt signed by Moody sometime before 2:40 in the afternoon of December 16, 1989 in Griffin, Georgia, directly contradicting Moody's alibi story.

The jury returned verdicts of guilty as to all counts. On August 20, 1991, Judge Devitt sentenced Moody to seven life sentences and four hundred years, to be served concurrently with each other. These sentences were to be served consecutive to a sentence previously imposed in the Middle District of Georgia for Moody's obstruction of justice in attempting to overturn his 1972 conviction. Moody timely appealed his convictions in this case.

II.

A

Moody first contends that the district court violated his Sixth Amendment right to counsel by allowing him to testify contrary to his counsel's wishes.

During the second week of the government's case in chief, Moody's two lawyers Edward Tolley and Donald Samuel, met ex parte with the district court with the government's consent. Counsel explained that Moody was insisting on testifying despite their repeated efforts to dissuade him. Counsel stated that they did not know what Moody's eventual testimony would be, and they advised the court that they could not say that Moody's testimony would constitute perjury.

One week later, the government rested its case. Tolley stated to the court at that time that Moody was insistent that he testify. Tolley also stated that he strongly recommended against such a course because Moody's testimony would be inconsistent with the defense as it had been conducted to that point, because it might be used against Moody in subsequent state prosecutions, and because his testimony was "not advisable." R23-2266-67. The court then questioned Moody himself. Moody assured the court that he had made a considered decision to testify and that he had received the contrary advice from his attorneys. The court directed Tolley to call Moody as a witness, and, at Tolley's request, permitted the testimony to proceed in narrative form. Moody's testimony spanned four days, and because his story was so incredible, it was damaging to him.

B

The Supreme Court has stated that although trial counsel has the authority to make certain tactical decisions during a criminal trial, the defendant retains the ultimate authority to make fundamental decisions regarding his case, including "whether to ... testify in his or her own behalf." Jones v. Barnes, 463 U.S. 745,...