U.S. v. Barlow

• Decision Date: 20 December 1994
• Docket Number: Nos. 93-2411,93-2474,s. 93-2411
• Citation: 41 F.3d 935
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Lee BARLOW a/k/a Douglas Lee Barlow, a/k/a Henry Gibbons, and William Heber LeBaron, a/k/a Heber LeBaron, etc., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Patricia LeBARON, a/k/a Trish LeBaron, a/k/a Valerie Davis, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 935

41 F.3d 935

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Lee BARLOW a/k/a Douglas Lee Barlow, a/k/a Henry

Gibbons, and William Heber LeBaron, a/k/a Heber

LeBaron, etc., Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Patricia LeBARON, a/k/a Trish LeBaron, a/k/a Valerie Davis,

Defendant-Appellant.

Nos. 93-2411, 93-2474.

United States Court of Appeals Fifth Circuit.

Dec. 20, 1994.

Peter John Barbaro (court-appointed), Houston, TX, for Barlow.

George McCall Secrest (court-appointed), David Cunningham, Houston, TX, for LeBaron.

Michael T. Shelby, Asst. U.S. Atty., Lawrence Finder, U.S. Atty., Houston, TX, for appellee.

Appeals from the United States District Court For the Southern District of Texas.

Before REYNALDO G. GARZA, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

In this direct criminal appeal, we are called upon for the first time to interpret the reach of 18 U.S.C. Sec. 247. In particular, we are asked to rule whether, as used in that statute, "the free exercise of religion" comprehends not only the right actively to select and practice the religion of one's choice, but also the right passively to refrain from practicing a particular religion or to disassociate one's self from one's former religion. We hold that the concept of "the free exercise of religion" is sufficiently broad to encompass both choices, active practice and passive disassociation.

Defendants-Appellants (collectively, "Defendants"), all members of a splinter religious sect commonly known as the "Church of the Lamb of God" (hereafter referred to

variously as the "Church of the First Born of the Lamb of God," "Lamb of God," or simply "the Church," depending on the context when read), were convicted under 18 U.S.C. Sec. 247 (obstruction of persons in the free exercise of religious beliefs), Sec. 1962(c) (Racketeer Influence and Corrupt Organizations Act ("RICO")), Sec. 371 (witness tampering), and Sec. 924 (using a firearm in commission of violent crime), for conduct associated with the killing of four persons, three of whom were former members of the Church. Leaders of the Church had ordered the execution of the three ex-members for the sole reason that they had chosen to disassociate themselves from the church's teachings and its fellowship. The fourth victim, an eight-year old daughter of one of the adult victims, was killed because she witnessed the slaying of her father. Defendants challenge their convictions, raising a host of issues, including the scope of Sec. 247, insufficiency of the evidence, invalid jury instructions, and inadmissibility of certain evidence. In addition, Defendant-Appellant Patricia LeBaron ("Patricia") asserts that the introduction into evidence of a statement that she made to a law enforcement official while she was incarcerated on other charges violated her constitutional rights. Finding no reversible error, we affirm the convictions and sentences of all Defendants in all respects.

I FACTS AND PROCEEDINGS

Patricia and Defendant-Appellants Douglas Barlow ("Barlow") and William Heber LeBaron ("Heber"), were convicted on various charges stemming from the assassination-style killings of Mark Chynoweth ("Mark"), Edward Marston ("Ed"), Duane Chynoweth ("Duane"), and Duane's eight-year old daughter, Jenny Chynoweth ("Jenny"), which were carried out simultaneously on June 27, 1988. ¹ At the time of the slayings, the Defendants were all members of the Church. The adult victims, all former members of the Church, were killed for the sole reason that they had chosen to disassociate themselves and their families from the Church's teachings and membership.

A. THE CHURCH OF THE LAMB OF GOD

In the early 1950s-60s, Joel LeBaron ("Joel") founded a religious sect which he named the "Church of the First Born of the Fullness of Time." The religion practiced by Joel's organization was based on various distortions of early Mormon teachings and, according to Joel, "revelations from God." Joel's brother, Ervil, was a member of Joel's church, but in 1971, the theological differences which had developed between the two brothers led Ervil to leave Joel's sect and form his own, which Ervil named the "Church of the First Born of the Lamb of God." After that schism, Ervil and Joel engaged in a protracted power struggle to control the members and property of Joel's church; and in 1972, Ervil had Joel killed. Ervil died in Utah State Prison in 1981, by which time various members of his sect--the Church--had been associated with nine murders in Mexico, California, and Utah.

The beliefs of the Church are set out in several publications, the most notable of which--the Book of the New Covenant--Ervil wrote while incarcerated in Utah State Prison. According to these teachings, the leader of the Church, known as the "Great Grand Patriarch" or "Patriarch," is empowered to brand disobedient members of the organization as "Sons or Daughters of Perdition," i.e., those who are "unredeemable." Being marked unredeemable is tantamount to a death sentence, for the Church practices "blood atonement," an archaic religious doctrine which is purported to teach that unredeemable members of a religion can obtain eternal salvation only through the shedding of their own blood.

Once the Patriarch pronounces a punishment, other members of the Church are required to carry it out. The reward for carrying out the Patriarch's directives is to share in the leadership in the Kingdom of God;

those who fail to do so, however, themselves become children of perdition.

B. THE ORDER TO KILL ED, MARK, AND DUANE

While Ervil was still in prison, Mark left Utah for Texas and then relocated in California, during which time, according to Ervil, Mark was living in "rebellion." ² Mark had begun to question some of Ervil's teachings, which led Ervil to pronounce:

There is a great controversy being caused by my servants Mark Chynoweth ... with the support of Ed Marston, and it is my will, that if these ... men will not repent immediately, that they should be destroyed immediately; because they are advantageous, and are seeking to destroy my little children, even the little children of my great and beloved Prophet, Seer, and Revelator.... [I]f they will not repent ... I now declare them to be outlaws, and I will require any man who loves me, and who will have a crown at my right hand, to kill them upon sight.... ³

Apparently neither Ed nor Mark "repented," so Ervil continued to proclaim that the two were Sons of Perdition, to be killed on sight. At some point, Ervil's wrath turned to Duane, prompting Ervil to decree that Ed could "be forgiven, only if he now shall kill king cobra [Duane] and Mark Chynoweth." ⁴ After Ed, Mark, and Duane learned of Ervil's various pronouncements, ⁵ in particular the one ordering Ed to kill Duane and Mark, these three decided to reject the teachings of both Ervil and the Church in toto.

Ervil's successor, Aaron, also denounced Ed, Mark, and Duane as "Sons of Perdition" because the three had chosen to disassociate themselves from the Church. Although at various times Church members openly discussed carrying out the Patriarchs' death sentences, Ervil's dictates remained unfulfilled until 1988. At that time, however, Aaron commanded that Ervil's prior edicts be enforced, and he ordered members to execute Ed, Mark, and Duane.

C. THE KILLING OF ED, MARK, DUANE, AND JENNY

In May 1988, Heber masterminded an elaborate scheme to carry out Ervil's and Aaron's directives. Heber planned to have the three Sons of Perdition slain simultaneously; no small feat given that Ed lived in Dallas, and Mark and Duane in Houston. The plan included surveillance, disguises, communication equipment, and stolen vehicles. Four Church members were assigned the task of killing the three former members: Heber would kill Mark; Patricia and Richard would kill Duane; and Barlow would kill Ed. Other Church members, such as Natacia LeBaron ("Natacia") and Cynthia would assist. Heber had anticipated that one or more of the targeted former members might be accompanied, so he instructed the assassins to kill all witnesses "over four years old."

Ed, Mark, and Duane were all in the appliance repair business, each with his own company. Ed's and Duane's standard operating procedures were to go personally to their clients' homes to pick up appliances that needed servicing. Knowing this, Heber planned to telephone Ed and Duane and arrange for each intended victim to go to a different vacant house ostensibly to pick up an appliance needing repair. At each such location, a Church member would be waiting to kill the victim upon his arrival. In contrast, Mark had his employees pick up his clients' appliances, so Heber elected personally to kill Mark inside his own store.

Heber's plan was set in motion on the morning of June 27, 1988. Equipped with binoculars, Cynthia and Natacia parked in front of Mark's place of business in Houston. When they saw Mark arrive, they radioed Heber who was waiting by a telephone. Heber, who was in Houston, then called Duane (also in Houston) and Ed (in Dallas). Heber arranged for each of them to pick up an appliance at a different vacant house at the same time later that same day.

At that appointed time, Heber positioned himself outside Mark's business in Houston, made sure that Mark was there, then radioed Cynthia (who was waiting in a car nearby) to "go for it." Heber, dressed in a business suit, then walked into Mark's store and shot him as he sat at his desk.

After receiving Heber's signal to "go for it," Cynthia called Barlow (who was waiting at a pay telephone in Dallas) and told him to execute the plan. Barlow proceeded to the vacant house in Dallas where Ed was scheduled to pick up an appliance, waited for Ed to arrive, and shot him when he did. A person who lived across the street from that vacant house saw the assailant, whom she later described as a young male in a ...