U.S. v. Hughes

• Decision Date: 08 February 2000
• Docket Number: No. 99-1232,99-1232
• Citation: 211 F.3d 676
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. EDWARD R. HUGHES, DEFENDANT, APPELLANT. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 676

211 F.3d 676 (1st Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. EDWARD R. HUGHES, DEFENDANT, APPELLANT.

No. 99-1232

United States Court of Appeals For the First Circuit

Heard February 8, 2000

Decided May 8, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Joseph R. Palumbo, Jr. for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Margaret E. Curran, United States Attorney, and Edwin J. Gale, Assistant United States Attorney, were on brief for appellee.

Before Torruella, Chief Judge, Selya, and Lipez, Circuit Judges.

Lipez, Circuit Judge.

The defendant, Edward Hughes, was convicted by a jury on one count of attempted extortion. According to the government, Hughes attempted to extort money from his employer by murdering the company president, Brian McCarthy, in Mexico, reporting it as a kidnapping and issuing a phony ransom demand. On appeal, Hughes contends that: (1) the evidence was insufficient to support the conviction; (2) the government improperly made statements to the jury during closing argument that were unsupported by the evidence in the record; (3) the government's failure to produce all of the crime scene photographs violated his right to a fair trial; (4) his sentence was incorrectly calculated using the guideline for first degree murder; and (5) the district court erred in ordering him to pay restitution. Unpersuaded by these arguments, we affirm both the conviction and the sentence.

I. THE PLOT

We begin by summarizing the twisted plot, adding more detail below as it becomes relevant to the legal analysis. We recite the facts in the light most favorable to the jury's verdict, to the extent consistent with record support. See United States v. Escobar-de Jesus, 187 F.3d 148, 157 (1st Cir. 1999). By the early 1980s, Hughes had earned a reputation as one of the top computer software engineers in America. After designing complex computer systems for the United States Department of Defense, Hughes and his close friend, Dennis Toomey, started their own computer software company, Ocean Systems. The two added a third partner, Donald Hastings, and in 1982 the three men sold the company to Analysis & Technology ("A & T"), staying on as A & T employees. In 1986, A & T entered into a joint business venture with Browne & Sharpe to create Automation Software, Inc. ("ASI"). Thereafter, Hughes, Toomey, and Hastings became ASI employees, with Hastings serving as president and Hughes as vice president. Hastings died the following year, and the ASI board commenced a search for a new president. The top candidates were Hughes and Brian McCarthy, a new ASI employee in sales and marketing hired by Hastings shortly before his death. Although McCarthy was an ASI neophyte, significantly younger than Hughes, and lacked Hughes's technical expertise, the board chose McCarthy to succeed Hastings. Hughes was upset. As the sitting vice president, he believed that he should have been offered the job, and he questioned McCarthy's qualifications for the position. Moreover, McCarthy's vision for ASI clashed with Hughes's. McCarthy wanted to expand ASI into a large company; Hughes wanted ASI to remain small, employing only elite software designers who would produce high-end programs.

In 1992, Hughes resigned as vice president, contracting to work half time in exchange for two-thirds of his original salary. Thereafter, Hughes spent most of his time in Mexico, installing and servicing computer software for ASI's Mexican customers. Although Hughes maintained his residence in Rhode Island, he purchased a home in Mexico and planned to relocate there. Meanwhile, Hughes persistently complained about the quality of ASI's software under McCarthy's leadership, occasionally even criticizing ASI's software in front of clients. Aware of this conduct, McCarthy arranged at a meeting of ASI's board of directors to terminate Hughes's relationship with the company by buying out the remainder of his contract. In mid-January 1994, McCarthy decided to travel to Mexico to meet with Martin Marquez, an ASI sales representative, and to visit the Cummins diesel engine plant, an ASI customer located in San Luis Potosi. While there, McCarthy also planned to tell Hughes about the board's decision to terminate his employment relationship with ASI.

On January 30, Hughes traveled by bus from Florida, where he had been vacationing with his wife, to Laredo, Texas. Hughes later told FBI Special Agent Nicholas Murphy that he was in no hurry because he did not expect to install the new ASI equipment at the Chrysler plant in Toluca, Mexico, until February 3 or 4. Arriving in Laredo on February 1, Hughes rented a Ford Tempo from the Budget rental agency in Laredo and drove to Mexico City. Upon reaching Mexico City, Hughes notified Marquez that he planned to pick up McCarthy at the Mexico City airport on Sunday night and that the two of them would drive to San Luis Potosi, four hours northwest of Mexico City. Marquez advised Hughes not to drive, and even volunteered to drive himself, but Hughes insisted, saying that he needed to talk to McCarthy in private.

On Sunday, February 6, McCarthy celebrated his daughter's tenth birthday in Michigan. He then boarded an airplane to Mexico City, meeting Hughes at the airport at approximately 10:30 p.m. The two men left the airport in Hughes's rental car and drove northwest toward Queretaro, a city about half way between Mexico City and San Luis Potosi. McCarthy was never again seen alive. The next day, February 7, at approximately 10:00 p.m., the Mexican authorities found his partially buried body in rubble alongside the Queretaro bypass highway. He had been shot five times.

On February 7 at 5:15 p.m., Hughes boarded a flight from Mexico City to New York, arriving in New York at 11:00 p.m. The next morning, while still in New York, Hughes placed a telephone call to Joanne Keaney, ASI's controller. He told her that during the drive from the Mexico City airport to San Luis Potosi, when he and McCarthy had pulled over to the side of the road because McCarthy had to relieve himself, they were attacked by three men. He said that the assailants threw him into the back seat of the rental car, ordered him to keep his head down, and drove the car around for a while before stopping at a house. In the house, Hughes said he heard his abductors refer to McCarthy in the present tense, thereby implying that McCarthy was still alive. The kidnappers then brought Hughes to the airport, provided him with his credit card and passport, and warned him that they would kill McCarthy if he did not return with one million pesos (about $325,000) within forty-eight hours.

Later that morning, when he arrived back at ASI's Rhode Island office, Hughes met with several members of ASI's management team. He recounted the story of the kidnapping and ransom demand. ASI owned executive kidnapping insurance, and the insurer promptly hired the Ackerman Group, a Miami-based company that specializes in handling executive kidnappings. Collaborating with Emanuel Ackerman, the group devised a plan to wire the ransom money to Hughes and an ASI vice president, Stephen Logee, in Mexico. Hughes would then meet with the kidnappers to make the payment. Hughes objected to the plan. He proposed instead that the money be given to him directly and that he fly alone to Mexico to execute the exchange. Hughes refused to say exactly where the ransom exchange would be, stating only that he was to contact the kidnappers in a public place. The group decided to follow the Ackerman plan, in part because customs procedures would prevent carrying large sums of cash across the border.

Hughes then borrowed a car, explaining that he wanted to go home to take a shower. A little while later, Hughes called the office to say that he had decided not to return to Mexico. After some coaxing, however, Hughes agreed to travel to Miami with Logee to meet with Ackerman. Meanwhile, the Mexican police, who had recovered McCarthy's body the night before, traced a bloody parking ticket found in his shirt pocket to his company car parked in the Detroit airport. When Hughes arrived at Rhode Island's T.F. Green airport later that afternoon for his trip to Miami, Logee informed him that the Mexican police had recovered a body believed to be McCarthy's. Hughes, appearing to get sick, immediately left the airport and refused to travel to Miami. The next day Hughes called Keaney to say that he was resigning from ASI.

In September 1996, a federal grand jury indicted Hughes for attempting to extort money from ASI in violation of the Hobbs Act, 18 U.S.C. § 1951.¹ Following a ten day trial, Hughes was convicted by a jury, sentenced to twenty years' imprisonment and three years' supervised release, and ordered to pay restitution. Hughes now appeals from his conviction and sentence.

II. THE SUFFICIENCY OF THE EVIDENCE

We must evaluate whether the evidence, viewed in the light most favorable to the government, was sufficient to support the jury's verdict--i.e., whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Czubinski, 106 F.3d 1069, 1073 (1st Cir. 1997). When reviewing for the sufficiency of the evidence, "all reasonable inferences must be drawn in the light most favorable to the government." United States v. Bay State Ambulance & Hosp. Rental Serv., Inc., 874 F.2d 20, 36 (1st Cir. 1989) (citation omitted). The government need not produce direct evidence to meet its burden of proof: "circumstantial evidence, if it meets all the other criteria of admissibility, is just as appropriate as direct evidence and is entitled to be given whatever weight the jury deems it should be given under the circumstances within which it unfolds." United States v. Gamache, 156 F.3d 1, 8 (1st Cir. 1998). Moreover, the government "need not present evidence that precludes every...