U.S. v. Gossett
| Decision Date | 19 July 1989 |
| Docket Number | Nos. 88-3072,88-3081,s. 88-3072 |
| Citation | 877 F.2d 901 |
| Parties | 28 Fed. R. Evid. Serv. 826 UNITED STATES of America, Plaintiff-Appellee, v. Billy Eugene GOSSETT, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William RECTOR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
F. Wesley Blankner, Jr., Katz, Jaeger & Blankner, Orlando, Fla., for Billy Eugene Gossett, Jr.
Peter Warren Kenny, Orlando, Fla., for William Rector.
H. Manuel Hernandez, Joseph D. Magri, Asst. U.S. Attys., Orlando, Fla., for the U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before POWELL *, Associate Justice (Retired), United States Supreme Court RONEY, Chief Judge, and HILL, Circuit Judge.
In this highly unusual case involving mutiny and murder on the high seas, defendants William Rector and Billy Eugene Gossett appeal their conviction for the murder of a ship's Captain, the attempted murder of his First Mate and mutiny. They assert that the district court failed to provide adequate funds for an investigation, to sever and to continue the trial, and that the district court made certain trial errors including refusing to permit a proffered defense witness to testify, and improperly instructing the jury. We affirm.
In July 1987, a commercial shrimping vessel, the "LESLIE RAE," left port in Tampa, Florida on a commercial shrimping expedition in the Atlantic Ocean, north of the Florida Keys. The crew members were Captain Phillip Roush, First Mate Willie Charpentier, and defendants William Gossett and William Rector. Maria Barnes was hired to work in the kitchen. Roush had been Captain of the ship for about one and a half years prior to his death, and Charpentier had been First Mate for almost as long.
The mutiny and attack occurred on July 29, approximately two days out of port while the LESLIE RAE was anchored more than 24 miles off the coast of Cape Canaveral in 150 feet of water. While the Captain and the First Mate were mending shrimp nets, Gossett and Rector came up behind the Captain and the First Mate and simultaneously attacked them. Gossett hit the Captain over the head with a ballpeen hammer, while at the same time Rector hit the First Mate over the head with a steel prybar. To escape the attack, the First Mate jumped overboard. Gossett and Rector dropped the Captain's body into the ocean. The First Mate testified that he then heard three successive shots from his .22 caliber rifle. After swimming for twelve hours in shark-infested water, the First Mate was rescued by the Coast Guard, who then boarded the LESLIE RAE and arrested the defendants.
A jury found both Rector and Gossett guilty of (1) conspiracy to commit mutiny; 1 (2) aiding and abetting each other in mutiny and revolt on board a United States registered vessel; 2 (3) aiding and abetting each other in the assault with intent to murder the First Mate; 3 (4) aiding and abetting each other in the first-degree murder of the Captain; 4 and (5) felony murder. 5 Rector and Gossett were each sentenced to two concurrent life sentences for the first-degree murder and felony murder, and an additional 20 years imprisonment for the conspiracy, mutiny, and assault with intent to commit murder.
Rector argues that he was denied a fair trial because of the district court's failure to provide adequate funds for his investigator. The district court supplied him with $1,000, the maximum amount allowable under 18 U.S.C.A. Sec. 3006A(e), but Rector contends that he needed additional funds to pay an investigator to develop more exculpatory evidence and to track down transient witnesses to testify concerning the First Mate's credibility.
As a threshold consideration, the Government contends that this Court lacks jurisdiction to review this issue. The appealability of an award for investigative services has not been decided by this Court. The Ninth Circuit has held that the Court of Appeals has jurisdiction to review a challenge to a denial by the district court of defendant's request for additional investigative funds on an appeal from a final conviction. United States v. Fields, 722 F.2d 549 (9th Cir.1983), cert. denied, 466 U.S. 931, 104 S.Ct. 1718, 80 L.Ed.2d 189 (1984). The Tenth Circuit holds to the contrary. United States v. Crim, 527 F.2d 289, 296 (10th Cir.1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). We agree with the Ninth Circuit that there is jurisdiction to review this issue. A review on the merits, however, discloses that Rector failed to establish a need for additional funds, so that the district court did not abuse its discretion in refusing Rector's request for additional funds.
The district court acted within its broad discretion in denying defendants' request for severance under Fed.R.Crim.P. 14. 6 Generally, coconspirators should be tried jointly. United States v. Caporale, 806 F.2d 1487 (11th Cir.1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d 763 (1987); United States v. Berkowitz, 662 F.2d 1127 (5th Cir. Unit B Dec.1981). Defendants have failed to demonstrate specific and compelling prejudice required to warrant severance. Caporale, 806 F.2d at 1509; United States v. Rivera, 775 F.2d 1559, 1564 (11th Cir.1985), cert. denied, 475 U.S. 1051, 106 S.Ct. 1275, 89 L.Ed.2d 582 (1986); Berkowitz, 662 F.2d at 1132.
The major argument for severance made by the defendants in their respective pretrial motions was the anticipated testimony of possible Government witnesses concerning incriminating out-of-court statements made by Rector and Gossett to fellow inmates while incarcerated, and the resulting confrontation problems under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), if either defendant decided not to testify. Since the district court ruled that no one from the jail would be allowed to testify about statements Rector and Gossett allegedly made about the case, this ground for severance never materialized. See United States v. Weinstein, 762 F.2d 1522, 1540 (11th Cir.1985) (), cert. denied, 475 U.S. 1110, 106 S.Ct. 1519, 89 L.Ed.2d 917 (1986); United States v. Caldwell, 543 F.2d 1333, 1357-58 (D.C.Cir.1974) (), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). The correctness of excluding that testimony is discussed hereafter.
Defendants also stated that their defenses would be antagonistic and mutually exclusive. Both motions were vague and conclusory, presenting no information upon which the court could determine that the defenses were irreconcilable. When a defendant fails to provide the court with any basis to grant his motion for severance, such as the nature of his defense and in what respect, if any, his defense is irreconcilable with that of his co-defendant, his motion should be denied. See United States v. Spitler, 800 F.2d 1267 (4th Cir.1986).
The trial court, however, has a continuing duty to sever when prejudice appears in the trial, Fed.R.Crim.P. 14; Schaffer v. United States, 362 U.S. 511, 514, 80 S.Ct. 945, 947, 4 L.Ed.2d 921 (1960); Berkowitz, 662 F.2d at 1132.
In this case, the jury was not forced to choose between Gossett's or Rector's testimony as to the core of each defense as argued by defendants. Gossett testified that neither he nor Rector intended to kill the Captain or the First Mate. Gossett said he agreed with Rector to take over the ship because he was tired of the abuse and was fearful for his safety. Gossett admitted striking the Captain twice in the head with a hammer, but said he did not use his full force, seeking only to knock him out. Gossett said it was Rector who then shot the Captain with the .22 caliber rifle.
Rector testified that he was surprised when Gossett attacked the Captain and only because he was afraid Gossett would kill him, did Rector attack the First Mate. He testified that Gossett shot the Captain and that all of Rector's actions were compelled by his fear of Gossett. The fact that their testimony conflicts on who shot the Captain is not significant to the core defense of each concerning lack of intent. See Berkowitz, 662 F.2d at 1132. Either could have shot the captain and both be guilty of the crimes for which they were convicted.
Concerning the conspiracy and mutiny charges, Gossett admits that he conspired with Rector to take over the ship while Rector, on the other hand, denies any involvement in the plan to take over the ship and asserts that he was coerced to act by Gossett. Rector admits, however, to talking with Gossett about taking over the ship, but says they never agreed to it. Thus, the jury could have believed Gossett thought there was a conspiracy by misinterpreting Rector's words and actions and still believe Rector's testimony that there was no conspiracy or joint mutiny. Neither defendant was entitled to a severance from the trial of the other.
Gossett and Rector alleged that the district court should have granted their motions for a 30-day continuance, because of the return of a superceding indictment. The district court's ruling is reviewed for abuse of discretion. United States v. Schardar, 850 F.2d 1457, 1459 (11th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 326, 102 L.Ed.2d 343 (1988); United States v. Marquardt, 695 F.2d 1300, 1302 (11th Cir.), cert. denied, 460 U.S. 1093, 103 S.Ct. 1793, 76 L.Ed.2d 360 (1983); United States v. Uptain, 531 F.2d 1281, 1285 (5th Cir.1976).
The original six-count indictment was returned on August 28, 1987, charging defendants with: conspiracy to commit mutiny; aiding and...
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