U.S. v. Hattaway

• Citation: 740 F.2d 1419
• Decision Date: 13 November 1984
• Docket Number: 83-1780 and 83-1940,Nos. 83-1580,83-1779,s. 83-1580
• Parties: 15 Fed. R. Evid. Serv. 2091 UNITED STATES of America, Plaintiff-Appellee, v. Allan Ray HATTAWAY, Thomas Stimac, Robert George Burroughs, and Marty Curran, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1419

740 F.2d 1419

15 Fed. R. Evid. Serv. 2091

UNITED STATES of America, Plaintiff-Appellee, v. Allan Ray HATTAWAY, Thomas Stimac, Robert George Burroughs and Marty Curran, Defendants-Appellants.

Nos. 83-1580, 83-1779, 83-1780 and 83-1940.

United States Court of Appeals Seventh Circuit.

Argued April 6, 1984.

Decided July 31, 1984.

Certiorari Denied Nov. 13, 1984.

See 105 S.Ct. 448.

Donald B. Mackay, James A. Graham, Seiden & Shapiro, John Thorne, Kirkland & Ellis, Chicago, Ill., for defendants-appellants.

William R. Coulson, Deputy Chief, Cr. Div., U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER and ESCHBACH, Circuit Judges, and JAMESON, Senior District Judge. ^*

BAUER, Circuit Judge.

In May 1982, the government indicted six persons on charges of conspiracy, kidnapping, violation of the Mann Act, and unlawful use of firearms in connection with the alleged abduction and holding of a North Carolina woman. After a three-week jury trial, five of the defendants were convicted of various charges and one was acquitted. Defendants Hattaway, Stimac, Curran, and Burroughs appeal their convictions. The fifth convicted defendant, Gary Miller, has not appealed. We affirm.

I

The charges against the defendants arose out of the alleged abduction, transportation, and holding of Darlene Callahan in North Carolina, Illinois, and Indiana. The sequence of events is largely undisputed. Darlene Callahan and her boyfriend, Tom Forester, lived near Asheville, North Carolina. Forester was a drug dealer and Callahan was a prostitute who helped deliver drugs for Forester. Defendant Hattaway also lived in North Carolina, where he was associated with the Outlaws motorcycle gang. On December 12, 1981, Hattaway learned that Forester had taken Hattaway's motorcycle. Later that evening, Hattaway and his friend Gary Miller went to the motel room in Asheville where Callahan and Forester were staying. Hattaway asked Forester where his motorcycle was and whether Forester had the money he owed Hattaway for prior drug transactions. Hattaway and Miller then abducted Forester and Callahan at gunpoint and drove them to the Ore Knob mine. On the way they discussed how Forester and Callahan could earn money to repay the debt owed to Hattaway. At the mine, Hattaway and Forester left the car and went inside, where Hattaway allegedly pushed Forester down a mineshaft to his death. During their absence, Miller sexually assaulted Callahan.

When Hattaway returned, he and Miller drove with Callahan to Chicago. During the trip, Miller again sexually assaulted Callahan. Hattaway told Callahan that he might sell her, he might give her to the Outlaws living in the Chicago area, or he might keep her as his "old lady." ¹ On the evening of December 13, the three arrived in Lyons, Illinois, where they stayed in a motel. Defendant Curran, a member of the Chicago Outlaws, came to the motel the next evening. Hattaway ordered Callahan to have sexual intercourse with Curran; Callahan also had intercourse again with Miller. The next day they went to another motel in Lyons. Defendant Stimac, a leader of the Chicago Outlaws, joined them that evening. Hattaway gave Stimac one hundred dollars to buy Callahan some clothes. The following day, Stimac left with Callahan and introduced her to Defendant Burroughs, a member of a Canadian Outlaws group. Stimac and Burroughs took Callahan to yet another motel, where Burroughs had sexual intercourse with Callahan. Burroughs told her that he, Stimac, or Curran could get her a job as a prostitute. Burroughs also warned her that a good way to control "old ladies" was to "cut them across the forehead and make them bleed."

On December 17, Burroughs and Stimac drove Callahan to Stimac's house in Hinsdale, Illinois. There Callahan met Stimac's "old lady," Toni Summers, who was a dancer and occasional prostitute. Summers was the sixth defendant at the trial. Defendant Curran arrived and told Callahan to have sex with Stimac. Afterwards, Curran and Stimac asked Callahan whether she preferred to work as a prostitute, or both as a dancer and a prostitute. Curran then drove Callahan to a farmhouse near Gary, Indiana, called "The Flats," where the Outlaws trained new members. Callahan stayed there for five days, during which she had sexual intercourse with Curran. Callahan and Curran then returned to Stimac's Hinsdale house, where Callahan remained with Curran, Burroughs, Stimac and Summers until Christmas Eve. They had dinner on Christmas Day at Stimac's mother's house, where Callahan was introduced as Curran's "old lady." That evening, Stimac took Callahan and Summers to an "X-rated" motel, where Callahan engaged in a "threesome" with Stimac and Summers. ²

For the next several days, Callahan lived at the Hinsdale house, at Summer's apartment in Glendale Heights, and at a house called the "Ponderosa." On January 4, 1982, police in North Carolina arrested Gary Miller on the charge of abducting Callahan and her boyfriend Tom Forester. Upon Curran's and Stimac's instructions, Callahan called the Asheville police on January 7 and told them she had not been kidnapped. On January 25, North Carolina authorities recovered Forester's body from the Ore Knob mineshaft. That afternoon, Curran took Callahan to a motel and then left. A frightened Callahan attempted to call Gary Miller's home; he was not at home, so Callahan called her mother for the first time since she had left North Carolina. Her mother told Callahan that the authorities had found Forester's body, and advised her to call the FBI. After Callahan telephoned the FBI, two police officers arrived and took her away.

The government indicted Hattaway, Miller, Stimac, Curran, Burroughs, and Summers on charges of conspiracy, kidnapping, Mann Act violations, and unlawful firearms use. The defendants were tried jointly before a jury. The principal defense theory at trial was that Darlene Callahan consented to being taken to Chicago and to remaining there. The court acquitted Toni Summers at the close of the government's case. The other defendants were found guilty of various charges and sentenced to terms ranging from three years to forty years. ³

II

Defendants Hattaway, Stimac, Curran, and Burroughs appeal their convictions on several grounds. Their appeals have been consolidated.

A. Joinder of Defendants

Hattaway and Stimac argue that they were misjoined in the indictment and at trial in violation of Rule 8(b) and Rule 14 of the Federal Rules of Criminal Procedure. The district court denied their pre-trial motions for severance. Rule 8(b) allows the government to charge two or more defendants in the same indictment if the indictment alleges that the defendants "participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed.R.Crim.Pro. 8(b). It is well-established that a conspiracy charge ordinarily is sufficient to satisfy Rule 8(b)'s joinder requirements. See, e.g., United States v. Ras, 713 F.2d 311, 315 (7th Cir.1983); United States v. Garza, 664 F.2d 135, 142 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1620, 71 L.Ed.2d 854 (1982). Here, the government charged a continuous conspiracy to hold Callahan, begun by Hattaway and Miller in North Carolina and joined by Stimac, Curran, and Burroughs in Chicago. Although bad faith in charging a conspiracy may render joinder improper, Hattaway and Stimac have failed to allege that the government charged them with conspiracy in bad faith. The record contains ample evidence of a conspiracy, and we hold that Hattaway and Stimac properly were joined under Rule 8(b).

Hattaway and Stimac next argue that the district court erred in denying their motions for separate trials under Rule 14 of the Federal Rules of Criminal Procedure. The trial court's ruling on a Rule 14 motion for severance is committed to its sound discretion, and we will not overturn the court's decision absent clear abuse of discretion. United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). The defendants have the burden of showing that their joint trial resulted in prejudice. United States v. Ras, 713 F.2d 311, 315 (7th Cir.1983). Hattaway and Stimac each point to the alleged bad acts of the other defendants to show that they were prejudiced by the joint trial. Hattaway claims that he was prejudiced by evidence of the "terror, indignities and inhumane treatment" of Darlene Callahan by Stimac and the other Chicago Outlaws, while Stimac contends that he was prejudiced by evidence of Callahan's abduction and "subsequent abuse and mistreatment" in North Carolina by Hattaway and Gary Miller.

A strong judicial policy favors joint trial of defendants where largely the same evidence would be admitted in separate trials of each defendant. See United States v. McPartlin, 595 F.2d 1321, 1333 (7th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979). Here, under the government's conspiracy theory, Darlene Callahan's abduction in North Carolina was connected with her subsequent treatment in Chicago. The evidence surrounding Callahan's abduction thus would have been admissible at a separate trial for Stimac, just as the evidence of Callahan's Chicago activities would have been relevant during a separate trial for Hattaway. The district court thus did not abuse its discretion in denying the motions for severance. In addition, the policy considerations of judicial economy and of sparing Darlene Callahan from repeating the embarrassing accounts of her sexual abuse show the wisdom of the district court's decision not to sever.

B. Admissibility of Evidence on Forester's Death and

"Lifestyle" Evidence

Hattaway, Stimac, and Curran contend that the district court improperly allowed the government to introduce evidence regarding Tom Forester's death and the Outlaws' lifestyle. The...