U.S. v. Avants, 03-60526.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Rhesa Hawkins Barksdale
• Citation: 367 F.3d 433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest Henry AVANTS, Defendant-Appellant.
• Docket Number: No. 03-60526.,03-60526.
• Decision Date: 19 April 2004

367 F.3d 433 UNITED STATES of America, Plaintiff-Appellee,
v.
Ernest Henry AVANTS, Defendant-Appellant. No. 03-60526. United States Court of Appeals, Fifth Circuit. April 19, 2004.

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Richard Terrell Starrett, Asst. U.S. Atty. (argued), Jackson, MS, Paige M. Fitzgerald, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, for Plaintiff-Appellee.

Julie Ann Epps (argued), Jackson, MS, Thomas E. Royals, Thomas R. Mayfield, Royals & Mayfield, Jackson, MS, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi.

Before DAVIS, BARKSDALE and PRADO, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal from a conviction in 2003 concerning a racially motivated murder in a national forest in 1966 primarily presents constitutional due process and confrontation issues. Ernest Henry Avants was convicted for aiding and abetting the premeditated murder of Ben Chester White. See 18 U.S.C. §§ 1111 (murder), 7(3) (territorial jurisdiction over lands acquired by the United States), and 2 (aiding and abetting).

This 37-year delay, and attendant procedures utilized because of it, generated numerous issues. For example, as a result of this great passage of time, key witnesses had died; therefore, among other hearsay evidence, their testimony from almost 40 years before was read to the jury at the 2003 trial.

The principal issue raised by Avants is whether the indictment should have been dismissed because of the delay in obtaining it; among other things, Avants claims bad faith by the Government. He also presents many other challenges, quite a few for

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the first time on appeal: evidentiary rulings, including admitting testimony from a 1966 state court preliminary hearing; evidence sufficiency; requested jury instruction refusal; and sentencing at a federal prison in Texas by the trial judge from the Southern District of Mississippi for a crime committed there. AFFIRMED.

I.

Shortly before James Jones, on 11 June 1966, reported his automobile stolen, Mississippi law enforcement officers had found the intentionally burned vehicle. The next day, the body of Ben Chester White, a 67-year-old black sharecropper, was found beneath a bridge in Homochitto National Forest, in Adams County, Mississippi. While in custody the following day, Jones began making statements to Mississippi law enforcement officers, implicating himself, Claude Fuller, and Avants in White's racially motivated murder.

Jones' statements were in June and July 1966: one on 13 June; two on 14 June; one on 17 June (testimony at Fuller's and Avants' separate state court preliminary hearings); one on 5 July; and one on 15 July (recorded statement to the state prosecutor). Jones' June 1966 preliminary hearing testimony and his July 1966 statement to the prosecutor were read to the jury at Avants' trial on the federal charge in 2003.

According to Jones' 1966 preliminary hearing testimony, the murder occurred as follows. Jones drove to Fuller's house in the early evening on 10 June (Friday). Avants arrived approximately 30 minutes after Jones did. After the three men proceeded in Jones' automobile to White's house, where they asked him about a lost dog, White got into the automobile with them. With Jones driving, they entered the national forest. After Jones drove across a bridge, Fuller instructed him to turn the automobile around; Jones did so and stopped on the bridge. Fuller exited from the front passenger seat with a rifle (M-2 carbine); Avants, from the seat behind the driver with a shotgun. Both men walked to where White was sitting (rear passenger-side). Fuller ordered White to exit the vehicle. When White did not do so, Fuller shot him with the rifle at least 15 times in rapid succession and then told Avants: "Now you shoot him with the shot gun [sic]". Avants fired once; "the [shotgun] blast blew [White's] head off". Fuller and Avants removed White's body from the automobile and threw it over the bridge. Because of the resulting condition of Jones' automobile, Fuller and Avants burned it at another location. Fuller instructed Jones to report the vehicle stolen.

In the 15 July 1966 recorded statement to the state prosecutor, Jones admitted that, two weeks before the murder, he, Fuller, and two other individuals (but not Avants) had driven to White's house to kill him. But, because others were present, they did not do so. Relevant to Avants, the 15 July statement provided: on the day of the murder, while Jones was at Fuller's house, but before Avants' arrival, Fuller told Jones to "just take it easy; I got a fellow will be by in a minute"; later, when Jones' automobile stopped on the bridge, "Avants bailed out on the other side of the car at the same time ... Fuller did", with both men carrying their guns; and Jones helped Fuller and Avants drop White's body over the bridge.

Avants was indicted on state murder charges. On 13 March 1967, prior to his state trial late that year, Avants was interviewed by FBI Special Agents Kornblum and Boyle, concerning another racially motivated murder. In that interview, Avants volunteered that he had shot White with a shotgun. Among other comments, he stated: "Yeah, I shot that nigger.... I shot

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White]. I blew his head off with a shotgun"

In December 1967, Avants was acquitted of the state charges. Jones' trial ended in a hung jury. Fuller was never tried.

According to the Government, the case was brought to its attention in 1999, when a national news program provided a videotape of a recent interview with Avants. As a result, the Government became aware that the site of the crime (a national forest) supplied a basis for federal prosecution. See 18 U.S.C. § 7(3) (territorial jurisdiction of the United States). In June 2000, Avants was indicted in the Southern District of Mississippi on a federal charge for White's murder, based on the murder taking place in the national forest.

During pretrial motions, the district court ruled that Avants' 13 March 1967 statement to Special Agents Kornblum and Boyle (including, "I blew [White's] head off with a shotgun") would be excluded. As a result of the Government's interlocutory appeal, the ruling was reversed. United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968, 122 S.Ct.

2683, 153 L.Ed.2d 854 (2002).

A three-day trial took place in February 2003. In the time between the 1966 murder and 2003 trial, witnesses had died: Jones; Fuller; the woman who worked in the store where they stopped; the police officer who had taken Jones' stolen vehicle report; and Dr. Scanlon, who performed White's autopsy. Witnesses who were still alive (the then 10-year-old and 11-year-old who found White's body; the then 21-year-old neighbor who saw White drive off in Jones' automobile) were considerably older than they had been at the time of events. Certain physical evidence had become unavailable: White had been buried shortly after his death, and even if the exact site were found, little could be learned; and X-rays from the postmortem examination could not be located.

The evidence presented at trial by the Government included: Jones' 17 June 1966 state preliminary hearing testimony and 15 July 1966 statement to the state prosecutor (read to the jury); testimony (read to the jury) from Avants' preliminary hearing and Jones' trial by Dr. Scanlon (deceased), who performed the autopsy on White; testimony by Dr. Hayne, a pathologist; and testimony by Kornblum, one of the FBI Special Agents to whom Avants stated in March 1967 that he had shot White with a shotgun. Avants presented Dr. Galvez, a pathologist.

The jury found Avants guilty. Because of Avants' health, and over his objection, sentencing was held in Texas, where Avants was incarcerated to ensure proper medical treatment, rather than at the place of trial — the Southern District of Mississippi. He was sentenced to life imprisonment.

II.

The numerous issues raised by Avants include: pre-indictment delay; evidentiary rulings; evidence sufficiency; requested jury instruction refusal; and sentencing venue. Many of these issues are raised for the first time on appeal.

A.

Avants contends that, for the facts at hand, the Government's indicting him in June 2000 for a crime committed in June 1966, 34 years earlier, violates due process. The crime for which Avants was indicted does not have a statute of limitations, but the Fifth Amendment's due process clause limits the time after an offense within which the Government may bring an indictment. United States v. Lovasco, 431 U.S. 783, 788-89, 97 S.Ct. 2044, 52 L.Ed.2d

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752 (1977); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

For our circuit's two-part test for determining whether pre-indictment delay violates due process, an accused must show: the delay "was intentionally brought about by the government for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other bad faith purpose"; and "the improper delay caused actual, substantial prejudice to his defense". United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir.1996) (en banc), cert. denied, 519 U.S. 1076, 117 S.Ct. 736, 136 L.Ed.2d 676 (1997). In short, the burden is on the defendant to satisfy both parts. See United States v. Jimenez, 256 F.3d 330, 345 (5th Cir.2001), cert. denied, 534 U.S. 1140, 122 S.Ct. 1090, 151 L.Ed.2d 989 (2002).

As he did in district court, Avants urges a more favorable test, employed by a minority of circuits. E.g., Howell v. Barker, 904 F.2d 889, 895 (4th Cir.) (once defendant shows actual prejudice, court balances prejudice against Government's justification for the delay), cert. denied, 498 U.S. 1016, 111 S.Ct. 590, 112 L.Ed.2d 595 (1990). Of...