U.S v. Hayes, 063000 Fed06

• Decision Date: 02 May 2000
• Docket Number: No. 97-5966,97-5966
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Chalmer C. Hayes, also known as Chuck Hayes, also known as Charles Hayes, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 615

218 F.3d 615 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Chalmer C. Hayes, also known as Chuck Hayes, also known as Charles Hayes, Defendant-Appellant.

No. 97-5966

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 2, 2000

Decided and Filed: June 30, 2000

Appeal from the United States District Court for the Eastern District of Kentucky at London; No. 96-00060--Jennifer B. Coffman, District Judge.

Kenneth S. Siegel, Tampa, Florida, Chalmer C. Hayes, Lexington, Kentucky, pro se, for Defendant-Appellant.

Charles P. Wisdom, Jr., Patrick H. Molloy, ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, Martin L. Hatfield, ASSISTANT UNITED STATES ATTORNEY, London, Kentucky, for Appellee.

Before: MOORE and GILMAN, Circuit Judges; McKEAGUE,^* District Judge.

OPINION

RONALD LEE GILMAN, Circuit Judge.

In 1996, Chalmer Hayes agreed to pay a man $5,000 to kill his son. Unfortunately for Hayes (but fortunately for his son), the man he tried to hire was an undercover FBI agent. Hayes was subsequently arrested, indicted, and convicted of murder for hire, in violation of 18 U.S.C. § 1958. For the reasons set forth below, we AFFIRM Hayes's conviction.

I. BACKGROUND

Madge Hayes Beckett, Chalmer Hayes's mother, died on December 24, 1994. She left her grandson, John Hayes (Chalmer Hayes's son), nearly all of an estate valued at $895,000. To her two sons, she left almost nothing. Chalmer Hayes received only $1,000 under the terms of his mother's will. Even so, he made out better than his brother, Brady Hayes, who was left $500.

Madge Hayes Beckett executed her will, which named her grandson as the executor of her estate, less than two months before she died. Her will was probated on January 18, 1995. The very next day, Chalmer Hayes filed suit against John Hayes in Kentucky state court, alleging that his son had exerted undue influence over Madge Hayes Beckett and had coerced her into signing the will. Chalmer Hayes asserted that he was entitled to all of his mother's estate.

The will contest became highly acrimonious. At John Hayes's behest, Chalmer Hayes, who lived on property in Nancy, Kentucky that had belonged to his mother--and now belonged to his son--was ordered by the court to pack up his belongings and move. This, of course, did not improve the relationship between father and son. Originally, the court had required that Chalmer Hayes vacate the property by July 27, 1996. At Chalmer Hayes's request, the court granted him an extension until November 1, 1996 to leave and remove his belongings. He subsequently sought additional extensions of time, but the court rejected the requests.

Several months earlier, in June of 1996, Chalmer Hayes was interviewed by a journalist and author named Lawrence Myers. Myers's interest in Chalmer Hayes was apparently due to the latter's claim of having been a contract agent of the Central Intelligence Agency (CIA) over a period of forty-two years. (There is apparently no truth to this claim; the CIA denied ever having heard of Chalmer Hayes.) The relationship between the two men is significant, because Chalmer Hayes's sole argument on appeal revolves around Myers's involvement in this case.

In late July of 1996, Chalmer Hayes telephoned Myers. Shortly thereafter, Myers returned the call. During the conversation, Chalmer Hayes asked Myers if he knew what the phrase "wet work" meant. After consulting a reference book, Myers replied that he understood the phrase to be the English translation of a Russian euphemism for assassination. Chalmer Hayes told Myers that his understanding was correct, and that he needed a "wet boy" to do a job for him in Nancy, because there was a drug dealer from Louisville that he wanted killed. Myers suggested to Chalmer Hayes that he was "talking out of his head," and quite possibly violating the law simply by broaching the topic. Chalmer Hayes responded that he was very serious about his plan.

On August 27, 1996, Chalmer Hayes met Myers in Nancy. Over coffee, Chalmer Hayes passed to Myers a piece of paper with John Hayes's name, address, and telephone number. Chalmer Hayes described John Hayes (although he told Myers that he and John Hayes were not related) as a thirty-six year-old white male who used and sold cocaine, and drove a beige GMC mini-Blazer. He repeated that John Hayes was a drug dealer who was "going to die" because Chalmer Hayes was going to have him killed.

Either that day or the next, Chalmer Hayes faxed Myers a note requesting that Myers call him back. When Myers returned the call, Chalmer Hayes said that he was very upset because John Hayes had just paid him an unwanted visit, and reiterated that he wanted Myers to arrange to contact someone who could kill John Hayes. Myers suggested that Chalmer Hayes simply call the police if John Hayes was bothering him, but this suggestion was rejected. Chalmer Hayes then told Myers that if he would not help, Hayes would hire an individual named Roy, who had purportedly agreed to kill John Hayes. At that point Myers telephoned Stephen Brannan, a special agent of the Federal Bureau of Investigation (FBI) based in Birmingham, Alabama, with whom Myers was acquainted, to inform him that Chalmer Hayes was plotting to have John Hayes killed.

In early September of 1996, Myers again spoke with Chalmer Hayes, who told Myers that he "still had this problem and still wanted somebody to help him." Myers informed Agent Brannan of this conversation. At Agent Brannan's direction, Myers told Chalmer Hayes that he "might know" someone who could help, and that if this person was to call Chalmer Hayes, he would identify himself by saying that he "just talked to the guy that you gave a couple of tobacco pipes."

Soon thereafter, Agent Brannan arranged for FBI Special Agent Don Yarbrough to pretend to be a hit man and to conduct an undercover investigation. On September 10, 1996, Agent Yarbrough telephoned Chalmer Hayes. The conversation was secretly audiotaped by Agent Yarbrough. Agent Yarbrough identified himself by using the line about the tobacco pipes. Chalmer Hayes said he knew who Yarbrough was talking about, and asked Yarbrough for "help." Specifically, he identified and described John Hayes and the beige mini-Blazer he drove, and expressed a desire to meet in person to discuss the particulars of the "help" he was asking Yarbrough to provide. At Agent Yarbrough's request, Chalmer Hayes subsequently mailed Yarbrough a photograph of John Hayes to a post office box address that Yarbrough had provided. Around this time, the FBI determined that John Hayes was Chalmer Hayes's son.

On September 20, 1996, Chalmer Hayes and Agent Yarbrough had another telephone conversation. Like their first discussion, this conversation was audiotaped without Chalmer Hayes's knowledge. Agent Yarbrough asked Chalmer Hayes to clarify whether he wanted "the full treatment" or simply wanted "the boy scared." Chalmer Hayes replied that he wanted "the full treatment" and emphasized that he "want[ed] him out of the way."

On October 10, 1996, Chalmer Hayes and Agent Yarbrough met in Kentucky at the Nancy property to discuss the proposed hit. This was a prearranged meeting, and it was the first time that the two of them had met face-to-face. Also present, but out of sight, were Agent Brannan and another FBI agent, David Keller, who were conducting remote surveillance. The ostensible purpose of this meeting was for Agent Yarbrough and Chalmer Hayes to work out the terms of Yarbrough's services as a contract killer. Agent Yarbrough negotiated a price of $5,000, with a $100 deposit payable in advance and the remainder payable seven days after the murder. The two agreed that Yarbrough would return to Birmingham and, from there, telephone Chalmer Hayes to explain whether the job had been completed by saying if the weather was "good" or "bad" in Birmingham.

A week later, on October 17, 1996, Agent Yarbrough met with Chalmer Hayes again. Agent Yarbrough told Chalmer Hayes that he was on his way to Louisville to do the job. Chalmer Hayes confirmed that he wanted John Hayes dead and preferred that his body not be found. On October 21, 1996, Agent Yarbrough telephoned Chalmer Hayes and told him that he was in Birmingham and that "the weather down here is absolutely drop dead gorgeous," meaning that everything had gone according to plan. The FBI arrested Chalmer Hayes later that day.

Myers was one of the witnesses who testified against Chalmer Hayes in the murder-for-hire trial that is the subject of this appeal. Incredibly, Myers had been the target of another, completely unrelated, murder-for-hire plot in Tennessee several years earlier. Apparently, an individual who was the subject of a news article that Myers had written was less than pleased with Myers's work. See State v. Shuck, 953 S.W.2d 662, 665 (Tenn. 1997); Politician Sentenced For Trying To Hire Hit Man To Kill Reporter, The Tennessean, July 30, 1998, at 4B. During the ensuing Tennessee murder-for-hire trial of the individual who wanted Myers killed, the Tennessee state prosecutor called Myers as a witness. To the prosecutor's chagrin, Myers testified in a manner that was unfavorable to the prosecution, favorable to the defendant, and, moreover, contradicted what he had written about the individual in the news stories that precipitated the murder-for-hire scheme. The prosecutor in the Tennessee case believed that Myers had lied on the stand, although Myers was apparently never charged with perjury or any other offense as a result of his testimony.

Shortly after Myers's testimony as a witness for the government in the present case, counsel for Chalmer Hayes learned about the Tennessee murder-for-hire case in which Myers was involved. He sought to recall Myers to testify as a hostile witness in order to ask him about his testimony in the Tennessee case. At the request of Chalmer Hayes, the district court granted an eleven-day...