U.S. v. Gordon, 86-4556

• Decision Date: 09 March 1987
• Docket Number: No. 86-4556,86-4556
• Citation: 812 F.2d 965
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Karen Ruth GORDON and David R. Woodcock, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 965

812 F.2d 965

UNITED STATES of America, Plaintiff-Appellee, v. Karen Ruth GORDON and David R. Woodcock, Defendants-Appellants.

No. 86-4556.

United States Court of Appeals Fifth Circuit.

March 9, 1987.

Rebecca L. Hudsmith, Shreveport, La. (Ct. Appt.), Alfred R. Beresko, Shreveport, La., (court appointed) for Karen Ruth Gordon.

E. Daniel Burt, Jr., Bain & Burt, Kim Hanson LaVigne, Shreveport, La., for Woodcock.

Joseph G. Jarzabek, Joseph S. Cage, Jr., U.S. Attys., D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Louisiana.

Before EDWARDS, ^* RUBIN and HILL, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Contending that, due to her psychological impairments, her statements to investigating officials and waivers of her Miranda rights were involuntary, a battered and sexually abused wife who conditionally pleaded guilty to aiding and abetting her husband's murderer after the fact appeals from a district court order denying her motion to suppress evidence she provided the government. The codefendant, the man convicted of murdering the battered woman's husband, also appeals from his conviction, raising the issue of the voluntariness of the woman's cooperation as well as claims arising from his own trial. We find that the woman's cooperation was not coerced and that none of the other asserted errors mandates reversal of the murder conviction and, therefore, affirm the judgments of conviction.

I.

In November 1985 Karen Ruth Gordon and David R. Woodcock were arrested and jointly indicted for charges arising out of the murder of Gordon's husband, Senior Master Sergeant Harry Michael Gordon, at Barksdale Air Force Base in Louisiana. Gordon was accused of conspiring with Woodcock to kill her husband and with aiding and abetting Woodcock's efforts to that end. Woodcock was charged with conspiracy to murder and with murder. The government's case was founded largely on statements Gordon made to agents of the FBI and the Air Force Office of Special Investigation ("OSI") during their investigation of the shooting death of her husband and on two telephone conversations between Gordon and Woodcock recorded with Gordon's permission after she had been identified as a suspect, arrested, and given Miranda warnings.

Gordon, a battered wife whose husband sexually abused her and her children, filed a motion to suppress the oral and written statements she made to investigators and the recordings of her telephone conversations with Woodcock. Contending that her psychological problems--including Battered Woman's Syndrome, dependent personality disorder, depression, and alcohol abuse--left her vulnerable and emotionally needy, Gordon argued that the nurturing and supportive posture adopted by agents investigating her husband's death effectively coerced her into cooperating. As a result, she contended, the incriminating statements she made to investigators were not the product of her free and rational choice and her waiver of her Miranda rights was involuntary and unwitting.

Hoping to boot-strap upon Gordon's claims, Woodcock also sought suppression of evidence against him. He contended that, because Gordon's statements and waivers were not voluntary and knowing, the evidence she provided investigating FBI and OSI agents could not be used against him. Woodcock also sought to suppress all evidence obtained as a result of a search of his home on the theory that the warrant authorizing the search was obtained solely on the basis of Gordon's tainted statements and waivers.

A four-day hearing on the motions was held before a United States Magistrate. Immediately following the hearing, the magistrate ruled from the bench, denying the motions. Chief Judge Stagg then gave Gordon and Woodcock the opportunity to file briefs seeking to overturn the magistrate's ruling.

Pending the district court's decision, Gordon entered a plea agreement with the prosecution whereby she conditionally pleaded guilty to one count of accessory after the fact to first degree murder. As part of the agreement, Gordon reserved the right to appeal the district court's denial of her motion to suppress and agreed to testify for the government at Woodcock's trial. Her testimony aided the government in securing a conviction of Woodcock on first degree murder on July 8, 1986. The same day, Woodcock was sentenced to life imprisonment.

Two days later, the district court issued an opinion and order rejecting each argument raised by Gordon and Woodcock. The court held that neither Gordon's statements nor her waiver of her Miranda rights was involuntary or uninformed. After a psychological evaluation ordered pursuant to 18 U.S.C. Sec. 4205(c) had been completed, Gordon was sentenced to ten years imprisonment.

On appeal, Gordon raises the same issues that she argued before the district court. Once again, Woodcock joins her in asserting that the trial court erred in denying the defense motions to suppress. He also alleges various other errors arising out of his trial and conviction.

II.

Chief Judge Stagg's thoughtful and thorough opinion ¹ denying Gordon's motion to suppress sets forth in full the facts regarding the behavior of government agents who questioned Gordon in the course of investigating her husband's death. This account is not disputed. The opinion is equally thorough in its analysis of the psychological testimony offered in Gordon's behalf and in applying the relevant law regarding voluntariness of both confessions and waivers of Miranda rights. We therefore adopt its conclusion and analysis, adding only that its correctness is confirmed by the Supreme Court's recent decision in Colorado v. Connelly. ² "[C]oercive police activity is a necessary predicate to finding that a confession is not 'voluntary'...." ³ The record amply supports the district court's determination that the behavior of FBI and OSI agents in this case was not coercive in any legally prohibited or morally reprehensible manner. Gordon's motion to suppress was, therefore, properly denied.

Despite the government's apparent willingness to concede the issue, we, like the district court, question Woodcock's standing to challenge the voluntariness of Gordon's statements and waivers. We need not address that issue, however, because we have determined that Gordon's statements and waivers were voluntary and knowingly made. If the tree is not poisonous, it cannot bear poisoned fruit.

III.

Woodcock raises several additional challenges to his conviction. He argues first that he was unfairly prejudiced by the addition of an aiding and abetting instruction to the jury on the last day of the trial. Although Woodcock correctly concedes that the aiding and abetting statute, 18 U.S.C. Sec. 2 ⁴ does not define a separate crime, ⁵ he contends that the court's giving an instruction based on that statute unfairly surprised him because, until the final day of the trial, the prosecution's litigation posture suggested that it rested its case solely upon the theory that Woodcock himself pulled the trigger of the rifle that killed Sergeant Gordon. Moreover, he asserts, the prosecution offered no evidence that he aided or abetted any other person who may have actually done the killing. He thus argues that he was given no opportunity to defend against conviction under a theory that he aided and abetted the actual murderer.

Woodcock's account of the trial is incorrect, for the government introduced significant evidence indicating that he hired someone else to do the shooting. Early in the trial Gordon testified that Woodcock had informed her of her husband's death and had told her that "they," Woodcock and his accomplice[s], had tried to make the murder look like an accident. She also told the jury that Woodcock had asked about her husband's life insurance coverage before the killing, demanded half the money after the killing was completed, and later informed her that $25,000 of the life insurance money demanded was for the hired gunman. He warned her that, if payment was not forthcoming, he and then Gordon and her children would be the killer's next victims.

The words "aid and abet" need not appear in the indictment in order to sustain a conviction as an aider and abettor. ⁶ "[T]he rule is well established, both in this Circuit and others, that one who has been indicted as a principal may be convicted on evidence showing that he has merely aided and abetted the commission of the offense." ⁷ The law does not entitle a defendant to rely on the sole defense that, although he arranged the murder, he did not personally pull the trigger. Any early suggestion, therefore, that the government expected to prove that Woodcock was the actual gunman rather than only an aider and abettor did not unfairly prejudice his defense.

Woodcock also challenges the trial court's ruling denying his motion for judgment of acquittal. Evidence is sufficient to support a conviction if, when viewed most favorably to the government and leaving all questions of credibility to the jury, it could be found by a reasonable jury to establish guilt beyond a reasonable doubt. ⁸ Once again, Woodcock's argument is founded on the false premise that he could not be convicted unless the prosecution proved that he was at the scene of the crime at the time of the killing and personally pulled the trigger. Moreover, the evidence that Woodcock at least aided and abetted in the murder is overwhelming. Gordon's testimony and the recordings made of her conversations with Woodcock would alone suffice to uphold the conviction. The recordings corroborate Gordon's testimony that Woodcock had told her of his role in the murder and wanted her to remain calm and cover up what she knew. Although the government could produce no witness who actually saw the killing and the evidence linking Woodcock to the crime scene is sparse, the testimonial and...