U.S. v. Keltner

• Decision Date: 05 June 1998
• Docket Number: 97-2370,Nos. 97-2365,s. 97-2365
• Parties: 49 Fed. R. Evid. Serv. 901 UNITED STATES of America, Appellee, v. Craig Scott KELTNER, Appellant. UNITED STATES of America, Appellee, v. Charles Bruce NABORS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 662

147 F.3d 662

49 Fed. R. Evid. Serv. 901

UNITED STATES of America, Appellee, v. Craig Scott KELTNER, Appellant.

UNITED STATES of America, Appellee, v. Charles Bruce NABORS, Appellant.

Nos. 97-2365, 97-2370.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1998.

Decided June 5, 1998.

Before BOWMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and JONES ¹, District Judge.

JONES, District Judge.

After a three week trial in which 104 witnesses testified and approximately 200 exhibits were introduced, defendants Craig Scott Keltner and Charles Bruce Nabors were convicted by a jury of a violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c). The jury found the defendants committed the following racketeering acts: robbery and kidnaping of Bill Anderson, robbery of Donna Johnson, interstate transportation of stolen property, conspiracy to rob and extort money from and attempted robbery of the Woodland Bank in Tulsa, Oklahoma, kidnaping of George Foster and Karen Fisher Perkins, wire fraud (Nabors only) and robbery and kidnaping of Vandy S. Gavin (Keltner only).

Both defendants were also convicted of conspiracy to commit extortion and robbery and interstate transportation of stolen jewelry. In addition, Nabors was convicted of mail and wire fraud, felon in possession of a firearm and possession of a stolen firearm. Keltner was convicted of structuring a cash transaction.

The District Court ² sentenced Nabors to life imprisonment and sentenced Keltner to thirty years' imprisonment. Both appeal their convictions. We affirm the convictions of both defendants.

I. BACKGROUND

The events involved in this prosecution commenced following Nabors' release from federal custody on parole in November 1990. In December 1990, Fern Kilgore's Ford Bronco was stolen. Kilgore's Bronco was rammed into a Radio Shack store during a burglary in January 1991. Billy Keltner, Keltner's brother, admitted his participation and implicated Nabors in the burglary of the Radio Shack store during an interview on February 25, 1991 with Federal Bureau of Investigation (FBI) agents and other law enforcement officials. Several compatible walkie-talkies and police scanners were stolen from the store. A police scanner guide of the brand sold exclusively by Radio Shack was later recovered by law enforcement from Keltner's car. Billy Keltner stated that Nabors did not find the specific type of microphone he wanted in the Radio Shack store so they burglarized a second store, where Nabors obtained the type of microphone for which he was looking. The internal components of one such microphone were identified as similar to the microphone used on a hoax bomb device involved in an extortion and robbery attempt of the Woodland Bank in Tulsa, Oklahoma. The items stolen from Radio Shack and the second store were similar to the items used in several subsequent crimes of which Keltner and Nabors were convicted.

The jury found Nabors and Keltner guilty of the January 1991 robbery and kidnaping of Bill Anderson. During the FBI interview on February 25, 1991, Billy Keltner admitted he participated in this crime. Anderson's description of the crime during his trial testimony coincides with Billy Keltner's description given to the FBI. The items stolen from Anderson included guns, cash, jewelry, a photograph of Keltner's sister and a vehicle. Some of these items, including the vehicle and a gun, were later recovered by Anderson. The stolen jewelry had a value of between $21,000 and $22,000. Anderson identified Nabors at trial as one of the perpetrators of the robbery and kidnaping.

The jury also found Nabors and Keltner guilty of the January 1991 robbery of Donna Johnson. The items stolen from Johnson included jewelry valued at $241,000, firearms, a camera, cash and a Cadillac. Johnson's Cadillac was later recovered. Billy Keltner admitted his participation in this crime to the FBI. Johnson testified at trial regarding the details of the robbery in her home. Billy Keltner's descriptions of the crime and the jewelry taken (including a Rolex watch) are almost identical to Johnson's trial testimony.

Keltner was found guilty of the robbery and kidnaping of Vandy S. Gavin. Gavin identified Keltner at trial as the person who robbed him in his home. Wade Wallis testified at trial that he, Keltner and Billy Keltner committed the robbery of Gavin in March 1991.

The jury found Keltner and Nabors guilty of conspiracy to commit extortion and robbery of the Woodland Bank in Tulsa, Oklahoma (Tulsa bank robbery). The jury also found the Tulsa bank robbery was a racketeering act under the RICO count. Viewing the evidence most favorably toward the guilty verdict, United States v. Darden, 70 F.3d 1507, 1517 (8th Cir.1995), cert. denied, 517 U.S. 1149, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996), the record reveals the following facts. Bill Foster, President and CEO of Woodland Bank, and Karen Fisher Perkins, Senior Vice President and Controller of Woodland Bank, were kidnaped by the defendants. Although Foster was not absolutely certain, he testified at trial he believed Keltner was the driver of the van involved in the crime and Nabors was the man in charge during the commission of the crime. Although Perkins had not identified Keltner or Nabors during lineups prior to trial, she identified Keltner during the trial as the driver of the van and Nabors as the man in charge. In addition, Nabors and Keltner admitted their participation in the Tulsa bank robbery (and some of the other burglaries and robberies discussed above) to several different individuals.

Defendants placed a device on Foster's car which was triggered to stop the car's engine. On June 14, 1991, Foster's car's engine stopped and could not be restarted.

Foster arranged for Perkins to give him a ride to work that morning. As Perkins was driving them to work, a van bumped into the back bumper of Perkins' car. Foster got out of the car to survey the damage. Nabors approached Foster with a gun and directed Foster to return to Perkins' car. Nabors got in the back seat of Perkins' car and directed Perkins to drive to a parking lot near the Woodland Bank. The van followed them to the parking lot.

Upon arriving in a parking lot, Nabors directed both Perkins and Foster to move to the van. Nabors ordered Foster to retrieve $1 million from the Woodland Bank. Foster informed the defendants the bank did not have $1 million cash on hand and the bank vault would not open for another 30 minutes. One of the defendants stated he knew the bank had $3.7 million. The most recent Statement of Condition of the Bank indicated the bank had $3.7 million in cash due from other banks. An employee of the bank testified that she believed Nabors came into the bank approximately one week prior to the Tulsa bank robbery and requested a copy of the Statement of Condition. The employee testified Nabors did all of the talking and a second man (younger than Nabors), dressed in white painters' pants, was with him. The employee did not identify the second man. Terry Leach and Darla Leach testified that Nabors and Keltner were in Oklahoma approximately one week prior to the Tulsa bank robbery. Darla Leach testified that Keltner was wearing white painters' pants during this visit to Oklahoma.

Following a discussion with Keltner about Foster's statement that the bank did not have $1 million in cash on hand, Nabors decided to have Foster retrieve all of the cash in the possession of the drive-up tellers. Nabors fastened a metal box with a cable around Foster's body and told Foster it was a bomb. Nabors told Foster to return to Perkins' car with the money and follow the map contained in the trunk of the car.

Foster entered the Woodland Bank and immediately called the FBI. The device placed on Foster was later found to be a microphone which allowed the defendants to hear what Foster was saying after he entered the bank. While Foster was driving to the bank, Keltner drove the van to a second parking lot where Nabors and Keltner ordered Perkins to transfer to a brown car. Once they were in the brown car, Perkins could hear Foster's voice on a two-way radio possessed by Nabors. When Nabors and Keltner heard Foster call the police, their attempt to start the car failed. Perkins escaped out the back door, flagged down a car and was given a ride to the bank.

The defendants were initially indicted in October 1992 and were ultimately tried on a second superseding indictment filed in September 1993. The District Court initially dismissed the RICO count in 1993, and this Court reversed. United States v. Nabors, 45 F.3d 238 (8th Cir.1995). The trial was commenced on July 29, 1996 and concluded on August 20, 1996.

II. DISCUSSION

A. RICO Violation

The RICO count against the defendants asserts a violation of 18 U.S.C. § 1962(c), which provides:

(c) It shall be unlawful for any person employed by or 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 or collection of unlawful debt.

1. Void For Vagueness

Defendants argue that the statutory substantive definition of RICO is void for vagueness as to the elements of enterprise and pattern of racketeering activity. "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Every circuit which has addressed the void-for-vagueness issue following the Supreme Court's decision in H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)...