U.S. v. Kehoe

• Decision Date: 08 November 2002
• Docket Number: No. 99-2897.,99-2897.
• Parties: UNITED STATES of America, Appellee, v. Chevie O'Brien KEHOE, also known as Jonathan Collins, also known as Chevie Collins, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 579

310 F.3d 579

UNITED STATES of America, Appellee, v. Chevie O'Brien KEHOE, also known as Jonathan Collins, also known as Chevie Collins, Appellant.

No. 99-2897.

United States Court of Appeals, Eighth Circuit.

Submitted: June 28, 2002.

Filed: November 8, 2002.

Rehearing and Rehearing En Banc Denied: January 10, 2003.

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J. Thomas Sullivan (argued), Little Rock, AR, for appellant.

Dan Stripling, Asst. U.S. Atty. (argued), Little Rock, AR, for appellee.

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Chevie Kehoe and Daniel Lee were charged with conspiring to violate and violating the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. §§ 1962(c) and (d), with murdering William and Nancy Mueller and Sarah Powell in aid of racketeering in violation of 18 U.S.C. § 1959, with a robbery conspiracy in violation of 18 U.S.C. § 1951(a), and with other substantive offenses. Kehoe and Lee were tried jointly in the district court¹ and were convicted of the substantive RICO offense, RICO conspiracy, various predicate acts under the RICO offense, and three capital counts of murder in aid of racketeering. Separate penalty proceedings were held because the death penalty was at issue. 18 U.S.C. § 3593(a). Kehoe was sentenced to life imprisonment without possibility of release.

On appeal, Kehoe raises a number of issues, including that the evidence presented was insufficient to establish an enterprise for purposes of RICO, and that his rights under the Fifth, Sixth, and Tenth Amendments of the United States Constitution were violated. For the reasons stated below, we affirm his conviction.

I. FACTS

"We state the facts in the light most favorable to the jury's verdict." United States v. Gundersen, 195 F.3d 1035, 1037 (8th Cir.1999); United States v. Kragness, 830 F.2d 842, 847 (8th Cir.1987). Chevie Kehoe, his father, Kirby Kehoe, his brother Cheyne Kehoe, co-defendant Daniel Lee, and Faron Lovelace were involved in a variety of criminal activities to promote and fund a white supremacist organization founded by Kehoe, known as the Aryan Peoples' Republic and the Aryan Peoples' Resistance (APR). APR, the RICO enterprise charged in the indictment, emulates an anti-governmental, white supremacist organization called the Order, formed by the late Robert Mathews.² Kehoe envisioned that APR would succeed where the Order had failed. APR would establish an independent country in the Pacific Northwest composed only of white members of the Christian Identity faith. The population would be maintained through the practice of polygamy and by the recruitment of people with similar beliefs, such as that Jewish people are the devil's lineal descendants and that white members of Christian Identity are the chosen.

In February 1995, Kehoe and his father robbed the Arkansas home of William Mueller, a formerly licensed gun dealer who owned a large collection of weapons and ammunition. Kehoe and his family transported the stolen property, which included guns, gun-parts, ammunition, and gun-related merchandise, from Mueller's home in Tilley, Arkansas, to the Shadows Motel in Spokane, Washington, by way of the Christian Identity community in Elohim City, Oklahoma, where Kehoe met Lovelace.

In June 1995, Kehoe and Lovelace kidnapped and robbed Malcolm and Jill Friedman, a Jewish couple, who owned a store in Coleville, Washington, at which Kehoe once was employed. Kehoe and Lovelace robbed the Friedmans of more than $15,000. Kehoe retained the majority of the money and distributed the remainder to Lovelace and Kirby Kehoe. Both Kehoe and Lovelace bought real property near Priest River, Idaho, with their respective portions of the proceeds from the kidnapping and robbery.

In January 1996, Kehoe and Lee returned to Mueller's property. Posing as federal agents, the two men overpowered William Mueller, his wife Nancy, and her eight-year-old daughter Sarah Powell. After incapacitating William and Nancy, Kehoe and Lee questioned Sarah Powell regarding the location of the approximately $50,000 Mueller had in his possession. After taking Mueller's money, as well as coins and firearms, Kehoe and Lee placed plastic bags over victims' heads and affixed the bags to their bodies with duct tape. After weighting the bodies with rocks and binding them further with duct tape, Kehoe and Lee threw them into the Illinois Bayou. The corpses were discovered in Lake Dardanelle near Russellville, Arkansas, in late June 1996.

Kehoe and Lee returned to Spokane, Washington, around January 14, 1996, with property stolen from the Muellers. Over the next few months, Kehoe moved about the country frequently. Kehoe traveled to his parents' residence in Yaak, Montana. He and Cheyne then traveled to Arizona, and then to Texas. In all of these states, Kehoe, as well as other members of his family, sold Mueller's guns and property. While in Texas, Kehoe confessed his role in the Mueller murders to Cheyne, telling him that he and Lee wore federal officer raid jackets and caps when they ambushed the Muellers and Powell. He then described the manner in which he and Lee killed the family and disposed of their bodies.

On February 15, 1997, after attending a gun show in Cincinnati, Ohio, Kehoe and Cheyne were stopped by police officers in Wilmington, Ohio. The officer asked Kehoe, who was driving, to provide identification. After Kehoe refused to do so, the officer asked him to step out of the Chevrolet Suburban, at which point Kehoe ran from the officer. Cheyne pulled out a gun and began to fire. Kehoe ultimately drove away in the confusion, leaving Cheyne to flee on foot. Kehoe drove to an industrial park. Shortly thereafter, another team of police officers found the Suburban. As an officer approached the Suburban, Kehoe fired approximately thirty-three rounds at him and his colleague. Although neither officer was injured seriously, a passer-by was shot in the arm. Kehoe escaped on foot. A search of the Suburban revealed property belonging to the Muellers, along with the federal raid jackets and caps used during the robbery and murders.

Both Kehoe and Cheyne stole cars and drove west. Kirby met Cheyne in Wyoming, and Kehoe met his mother, Gloria Kehoe, in South Dakota. The family reunited in Utah. In June 1997, Cheyne turned himself in to police. He provided the police with paint samples from the Suburban, which matched paint stuck to the duct tape used to bind the Muellers and Powell. Shortly thereafter, Kirby was arrested on gun violations, but was released pending trial. Gloria contacted ATF agents in Spokane, stating that she had begun to fear for her life because "she knew too much." She provided information that led to the discovery of more of the Muellers' property in storage units rented to the Kehoes, including numerous weapons and a key fitting the handcuffs that Mueller was wearing at the time of his death. Gloria also told the officers that both Kehoe and Lee had confessed to their roles in the Mueller murders.

Kehoe, Lee, and Kirby Kehoe were among the APR members indicted on December 12, 1997. Kirby pled guilty to conspiring to violate RICO and cooperated with authorities. Following a two-month trial, a jury convicted Kehoe and Lee on all five counts of the indictment.

II. RICO

We first address Kehoe's arguments concerning his RICO convictions. RICO makes it a crime "for any person... associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity...." 18 U.S.C. § 1962(c). Conspiracy to engage in activity constituting a substantive RICO offense under § 1962(c) is a separate criminal offense under § 1962(d). To obtain a conviction under RICO, the government or plaintiff must prove both the existence of an enterprise, as well as a pattern of racketeering activity. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). An "enterprise" is defined as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4); Turkette, 452 U.S. at 583, 101 S.Ct. 2524. "Racketeering activity," for purposes of RICO, includes "any act or threat involving murder, kidnapping, ... robbery, bribery... which is chargeable under State law and punishable by imprisonment for more than one year ...." 18 U.S.C. § 1961(1).

Kehoe contends that his convictions under RICO should be overturned because the evidence presented was insufficient to prove the existence of an "enterprise" for the purposes of RICO. Kehoe also argues that his prosecution for both the substantive RICO offense and the RICO conspiracy is barred by the Double Jeopardy Clause of the Fifth Amendment.

A. Sufficiency of the Evidence to Show an Enterprise

Kehoe contends that there was insufficient evidence to prove the existence of an enterprise under RICO, and, thus, that there was insufficient evidence to show that he conspired to commit a substantive RICO offense and committed murder to further the enterprise. Kehoe asserts that the evidence shows only that he contemplated organizing a group in the future.

When the sufficiency of the evidence to support a guilty verdict is challenged, we review "the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict." United States v. Harmon, 194 F.3d 890, 892 (8th Cir.1999) (citation omitted). We will reverse the jury's verdict "only if `no reasonable jury could have found the defendant guilty beyond a reasonable doubt.'" Id. (quoting United States v. Frayer, 9 F.3d 1367, 1371 (8th Cir.1993)).

Under RICO, an "enterprise is...