U.S. v. Felton

• Decision Date: 29 July 2005
• Docket Number: No. 03-1089.,No. 02-2414.,No. 03-1441.,02-2414.,03-1089.,03-1441.
• Citation: 417 F.3d 97
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Leo V. FELTON; Erica Chase, Defendants, Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — First Circuit

417 F.3d 97

UNITED STATES of America, Appellee/Cross-Appellant, v. Leo V. FELTON; Erica Chase, Defendants, Appellants/Cross-Appellees.

No. 02-2414.

No. 03-1089.

No. 03-1441.

United States Court of Appeals, First Circuit.

Heard April 6, 2005.

Decided July 29, 2005.

COPYRIGHT MATERIAL OMITTED

Lenore Glaser, for Leo V. Felton.

Timothy G. Watkins, Federal Defender Office, for Erica Chase.

S. Theodore Merritt, Assistant United States Attorney, with whom Michael L. Sullivan, United States Attorney, and Emily R. Schulman, Assistant United States Attorney, were on brief for the United States.

Before BOUDIN, Chief Judge,

TORRUELLA and SELYA, Circuit Judges.

BOUDIN, Chief Judge.

After a nine-day trial, a federal jury convicted Leo Felton and Erica Chase of a number of offenses centering around a bank robbery, counterfeiting, and the planned construction of an explosive device. The district court then directed a judgment of acquittal for both defendants on one of these counts-possessing a firearm in furtherance of a crime of violence. The defendants now appeal from their convictions (and Felton from his sentence as well); the United States cross-appeals from the judgment of acquittal ordered by the district court.

We begin with a summary of the background facts. Although the facts are commonly stated in the light most favorable to the verdict, this perspective strictly applies only for challenges to the sufficiency of the evidence; other claims, including most of those made here (e.g., prejudicial evidence), may require a more balanced treatment. See Gray v. Genlyte Group, Inc., 289 F.3d 128, 131 (1st Cir.), cert. denied, 537 U.S. 1001, 123 S.Ct. 485, 154 L.Ed.2d 397 (2002). However, in this case, most of the raw facts are not reasonably disputable.

While serving a prison sentence in New Jersey, Felton—an avowed white supremacist—began plotting with other like-minded prisoners to set up a small "cell" when he was released in January 2001. The goal of the cell was to incite a "racial holy war" through violent actions such as murders and bombings of targets associated with racial and religious minorities. Among the other prisoners involved in these plans were Thomas Struss, Wesley Dellinger, and Michael Reid.

By early 2000, Chase had begun corresponding with Felton through a prison outreach program run by the World Church of the Creator—a white supremacist group to which Chase belonged. In their letters Felton and Chase discussed their racist ideologies, and Felton began to suggest his plans for violent action after his release, although he did not mention anything specific. Upon his release, Felton returned to his wife in Ipswich, Massachusetts, and began putting his plans into action.

From prison, Felton had suggested that his wife purchase a firearm—purportedly for her own protection. She purchased a.38—caliber revolver; when he returned to Ipswich, Felton took over the gun and obliterated the serial number. He also purchased software and printing supplies to begin producing counterfeit bills on his home computer. In February 2001, when Struss was released from prison, Felton invited Struss to stay with him in Massachusetts and begin their cell's operations in earnest.

Upon Struss' arrival, Struss and Felton agreed that bank robberies, armored car robberies, and counterfeiting were all viable options for acquiring funds, and that with the funds thus acquired, the two would "go underground" and begin to incite interracial violence by bombing Jewish targets or killing Jewish, black, or civil rights leaders. Felton told Struss that Chase was dedicated to their cause and would be joining their cell and helping with counterfeiting. He also mentioned the possibility of using fertilizer bombs to carry out their plans.

At the close of the evening, the two men decided that they would start off with an "easy" robbery designed to build trust between them. The next morning, Struss entered a bank in Copley Square scouted by both men, slipped the teller a demand note, and made off with approximately $1,100 in cash as Felton waited outside with his wife's gun; the two then fled. After dividing the proceeds, Felton gave Struss the gun and the two split up, planning to reunite in a few days' time.

Not long after, Struss was arrested in New Jersey in an attempted carjacking—apparently in preparation for an armored car robbery with another cell member in the area. When Struss was released on bail, Felton told him by telephone to return to Boston to assume a new identity, noting that Chase had progressed with the counterfeiting operations and could provide him with a "safe house." Struss never returned to Boston, choosing eventually to cooperate with the authorities and testify against Felton and Chase at trial.

Chase, meanwhile, had continued her correspondence with Felton, and the two had begun speaking frequently on the phone after his release. They started to coordinate the specifics of their counterfeiting operation, and Chase began to plan to move to Boston and join Felton. Chase confided in a friend and fellow white supremacist, James Niemczura, that she intended to blow up a Holocaust or black history museum, and that Felton was planning on "robbing banks" and "blowing stuff up" after his release and did not expect to live for more than a year.

In late February 2001, Chase stole money from Niemczura and sent it to Felton to finance the startup costs of the counterfeiting operation in Ipswich. By mid-March, she had purchased a .40-caliber Iberia semi-automatic pistol, and had tried to purchase a second handgun but was unable to do so. Chase confided to Niemczura that she had purchased the gun "for protection. . . [f]rom anyone trying to interfere with her plan" with Felton.

She said that their plan was "to burn off their fingerprints with hot oil and assume the identities of missing children" so that they could "[g]o around and be terrorists," but she would not specify any further details for fear that Niemczura would be questioned by law enforcement. Chase did say that Niemczura would read about their exploits in the papers, and that she and Felton would go down in history.

In early April 2001, Chase arrived in Boston and moved into an apartment leased by Felton. The two began to pass counterfeit bills and gather the materials for a fertilizer bomb, including a coffee-maker to use as a timing device and a 50-pound bag of ammonium nitrate fertilizer, both of which were stored in the apartment. Felton ordered explosive devices, to be delivered to his Ipswich residence, to ignite the bomb. When Felton told one of Chase's close friends that they were making a bomb, Chase nodded in assent. Chase confided in the same friend that she and Felton were counterfeiting, and she referred to the bomb as her "future" with Felton.

On April 19, 2001, Felton and Chase were arrested when Chase attempted to pass a counterfeit bill. Thereafter, Chase asked her close friend to remove from the Boston apartment the fertilizer bag, the wiring from the disassembled coffee-maker, items associated with the counterfeiting (including uncut bills and software), a box of Chase's correspondence and keepsakes, white supremacist paraphernalia, and Chase's pistol—which lay loaded on the nightstand in the same room as the fertilizer. Felton told his wife in Ipswich to destroy his computer hard drive.

Chase and Felton were charged with conspiring to make and possess a destructive device in violation of 18 U.S.C. § 371, see also 26 U.S.C. §§ 5845(f), 5861(d) & (f); possessing a firearm in furtherance of that offense, 18 U.S.C. § 924(c)(1)(A); counterfeiting and conspiracy to do so, id. §§ 371, 471 & 472; and conspiring to obstruct, and obstructing, justice, id. §§ 371 & 1512(b)(2)(B). Felton alone was charged with attempting to receive explosives to injure, kill, or destroy property, id. § 844(d); two counts of being a felon in possession, id. § 922(g)(1); and two counts relating to bank robbery and Hobbs Act robbery, id. §§ 371, 1951 & 2113.

At the ensuing trial, the jury convicted both defendants on all counts, save that it acquitted Chase on the counterfeiting count. Having reserved the issue during trial, the district court granted motions for acquittal of both defendants on the charge of possessing a firearm in furtherance of the bomb-making conspiracy; the court deemed the evidence insufficient to establish the "in furtherance" element. United States v. Chase, 221 F.Supp.2d 209, 220-21 (D.Mass.2002). Felton was sentenced to 262 months in prison and Chase to 57 months.

On defendants' appeals, a central argument by Felton-and the sole argument to which Chase devoted her opening brief-is that the district court erred by admitting evidence of the defendants' ideological beliefs. Specifically, defendants object to the introduction of evidence linking them to white supremacist organizations or activities, including testimony regarding Chase's association with Matthew Hale and a photograph of Chase engaging in a Nazi salute while standing with Hale;¹ a World Church of the Creator pamphlet containing an article written by Chase about "white power" rallies she had attended; and a separate pamphlet by the church that discussed an apocalyptic "future" in which white women were "publicly gang-raped" by "Negroids."

The argument is that this evidence was highly prejudicial in the sense that it tended to inflame the jury and encourage it to decide other than on the merits; that its probative value in proving the offenses charged was small; and that because its prejudicial impact greatly outweighed its probative value, it should have been excluded under the calculus contained in Fed.R.Evid. 403. The district court's assessment in such a case is reviewed under a highly deferential abuse of discretion standard. United States v. Smith, 292 F.3d 90, 99 (1st Cir.2002), cert. denied, 538 U.S. 933, 123 S.Ct. 1597, 155 L.Ed.2d 332 (2003).

Unfortunately...