U.S. v. Guadalupe, 91-6320

• Decision Date: 06 November 1992
• Docket Number: No. 91-6320,91-6320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Steven GUADALUPE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 790

979 F.2d 790

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Steven GUADALUPE, Defendant-Appellant.

No. 91-6320.

United States Court of Appeals Tenth Circuit.

Nov. 6, 1992.

Susan M. Otto, Acting Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

James F. Robinson, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before SEYMOUR and MOORE, Circuit Judges, and KELLY, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

Thomas Steven Guadalupe appeals his conviction on charges of conspiring to damage or destroy a building used in interstate commerce in violation of 18 U.S.C. §§ 844(i) and 371, and causing Michael James and another to damage a building with an explosive, 18 U.S.C. §§ 844(i) and 2. Following imposition of two concurrent sixty-month terms, defendant appeals raising issues of the sufficiency of the evidence, the propriety of jury instructions, errors in the imposition of sentence, and effective assistance of counsel. Our review of the record discloses the evidence was sufficient to sustain conviction, any error in the instruction was harmless, and the enhancements to the sentence were proper. Because the record discloses no basis for abandoning our rule prohibiting consideration on direct appeal of the effectiveness of trial counsel, we do not consider the issue.

Mr. Guadalupe operated a restaurant and jazz club in Oklahoma City adjacent to a clinic operated by Dr. John Chiaf. Over the course of time, Mr. Guadalupe and Dr. Chiaf had become embroiled in a continuing dispute attributable to the overcrowding of the parking lot in front of Dr. Chiaf's building, ostensibly caused by the patrons of Mr. Guadalupe's establishments. Adding to the level of animosity, when Mr. Guadalupe attempted to enlarge his business, Dr. Chiaf's father protested to the city council. Although the protest was unsuccessful, the ill will between the men apparently prevailed.

In this context, Mr. Guadalupe approached Sean Gordon, a teenaged dishwasher employed in the defendant's restaurant, and told him in exchange for the $300 Sean owed defendant for a previous purchase, defendant wanted a job done. The following week, defendant told Sean he wanted Sean to blow up Dr. Chiaf's clinic.

After enlisting the aid of his friend, Bart Smiley, Sean met with defendant in the parking lot of defendant's restaurant. Also present were Bart and Bart's roommate, Michael James. James made bombs as "sort of a hobby" and claimed to be in production of a bomb.

At that meeting, defendant told Bart he could blow up either the building or Dr. Chiaf's car. Because Bart was reluctant to bomb the car, they settled on the clinic. For this service, Bart stated Mr. Guadalupe agreed to pay them "a large sum of money." Michael was more specific in his testimony and stated they were to receive $500.

Defendant said he wanted the roof to collapse, but Michael said that would be impossible because they did not have the capability to build a bomb of sufficient size. Defendant then told them they could not throw a bomb through a window because the windows were protected by alarms, so it was decided they could leave a bomb at the front door. Mr. Guadalupe added that he wanted the bomb to include gasoline so that the building would burn.

Several days later, Michael and Bart returned to the restaurant and showed defendant a bomb. When he saw it, defendant responded, "That ought to work."

About three weeks later, Sean called Bart and told him the defendant wanted the job done soon. Bart then arranged with Michael to bomb the clinic that evening.

Bart and Michael constructed a pipe bomb with a fuse, placed it in a bowling ball bag with a sprocket from a motorcycle and containers of gasoline and motor oil. About 3:00 a.m., they mounted a motorcycle and drove to the clinic. When they arrived, Bart placed the bomb at the front door, lit the fuse, and the two sped away.

Moments later, a police officer on his way to respond to another call spotted two people riding a motorcycle in the vicinity. Shortly thereafter he heard a police broadcast concerning an explosion and fire. When he concluded his first call, the officer went to the scene of the explosion to lend aid. While there, he again saw the same motorcyclists, who proved to be Bart and Michael returning to see whether the bomb had exploded, and gave chase. The boys were arrested and subsequently disclosed their participation in the bombing and agreed to cooperate with law enforcement officers.

Later that day, the boys returned to defendant's establishment with a hidden transmitter and a tape recorder. ¹ They were met by Mr. Guadalupe who admonished them not to say anything to anyone about the bombing and gave them a card bearing the name of his attorney. He instructed the boys if they were questioned by the police they should say nothing and contact the attorney. He also promised to pay them later "after things cooled down." Mr. Guadalupe was subsequently arrested, indicted, and this matter was brought to trial.

Defendant argues the evidence was insufficient to convict him on either count. He contends:

Read in the light most favorable to the government, Mr. Guadalupe submits the evidence shows, at most, Mr. Guadalupe was a legitimate businessman who indulged in frustrated musings in the presence of a young man eager for his approval. That young man, Sean Gordon, immediately engaged his friend, Bart Smiley, who was anxious for money and prone to telling tales. Bart Smiley turned to his roommate, Michael James, whose propensity for dangerous hobbies gave him ready access to the ingredients for a bomb. There was no evidence of a common meeting of the minds among these purported conspirators and Mr. Guadalupe. Rather, the evidence indicate [sic] the plan began and was set in motion by Sean Gordon, acting through Bart Smiley and Michael James.

Our review of the record, which has disclosed facts ignored by the defendant, suggests this contention is supported only by defendant's opinion of the credibility of his coconspirators. Our view, unhampered by that bias, United States v. Richard, 969 F.2d 849, 856 (10th Cir.1992) (an appellate court is bound to the rule that resolution of the credibility of witnesses is for the jury), discloses the evidence we have outlined is more than sufficient to sustain the verdicts.

We review the record only to determine whether both the direct and circumstantial evidence, together with the reasonable inferences that can be drawn from that evidence, when viewed in a light most favorable to the government, would permit a reasonable jury to find the defendant guilty beyond a reasonable doubt. United States v. Conner, 972 F.2d 1172, 1173 (10th Cir.1992). Applying that standard, we conclude the evidence of defendant's guilt is substantial.

Count I of the indictment charges defendant with conspiring with Michael James and another to blow up Dr. Chiaf's office contrary to the provisions of 18 U.S.C. § 371. There are five elements which must be established for a conviction under that section: (1) an agreement, (2) to break the law, (3) an overt act, (4) to further the conspiracy, and (5) willful participation in the conspiracy by the defendant. United States v. Nall, 949 F.2d 301, 305 (10th Cir.1991).

In this case, the government's direct evidence established that defendant had conversations with Michael James and Bart Smiley in which he asked them to bomb the office of Dr. Chiaf. Contrary to his claim, defendant's participation went beyond merely suggesting the bombing. He gave specific directions of how the bombing was to be accomplished and ordered an incendiary accelerant be used to start a fire. He also viewed a bomb, and according to the inferences drawn from his statement "[t]hat ought to work," indicated his approval of the type of device to be used. The direct evidence further established that in exchange for the acts of Michael James and Bart Smiley, defendant agreed to pay them a sum of money. It is not contested that James and Smiley built and detonated the bomb and that the detonation was in violation of 18 U.S.C. § 844(i). Thus, we are satisfied the overt acts charged in the indictment, the agreement, its illegality, and defendant's willing participation were established by the government, and the evidence was sufficient to support the verdict on the first count.

Moreover, as defendant admits, the evidence on Count I was inexorably intertwined with Count II. That count charged defendant violated 18 U.S.C. § 2 by causing Michael James and another to commit an act contrary to 18 U.S.C. § 844(i). Suffice that the evidence we have already discussed establishes the fact of defendant's guilt on the charge.

Defendant next contends the district court gave a flawed instruction that misled the jury on the issue of conspiracy. In an instruction defining the crime of conspiracy and its elements, including proof of an overt act, the court, in part, instructed:

In this case, there is no dispute that the fourth overt act charged in the indictment occurred, that is that Michael Bryant James placed a pipe bomb at the...