U.S. v. Kenny
| Decision Date | 19 August 1992 |
| Docket Number | No. 92-5083,92-5083 |
| Citation | 973 F.2d 339 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William H. KENNY, a/k/a Reverend Kenny, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Frank Salvato, Alexandria, Va., argued for defendant-appellant.
Rita Genetti Calvin, Sp. Asst. U.S. Atty., Office of the U.S. Atty., Alexandria, Va., argued (Richard Cullen, U.S. Atty. and Mark J. Hulkower, Asst. U.S. Atty., on brief), for plaintiff-appellee.
Before NIEMEYER, HAMILTON, and WILLIAMS, Circuit Judges.
William H. Kenny appeals his conviction for obstruction of justice for attempting to cause and induce a grand jury witness to provide false information. 18 U.S.C. § 1503. Four issues are raised on appeal: (1) whether 18 U.S.C. § 1503 applies to Kenny's alleged conduct, (2) whether there was sufficient evidence to sustain his § 1503 conviction, (3) whether the admission of certain evidence under Fed.R.Evid. 404(b) constitutes reversible error, and (4) whether the district court properly charged the jury on the issue of intent. Finding no reversible error, we affirm the judgment of conviction.
In mid-December 1990, the credentials, service revolver, and two personal American Express Travelers checks of a Federal Bureau of Investigation (FBI) Agent were stolen from the Agent's personal vehicle in Arlington, Virginia. In January 1991, the two checks, endorsed with the name "Kenny," were deposited in the bank account of Rufus and Delores Stancil of Washington, D.C. FBI Agent Alan Malinchak, who was assigned the case, contacted Stancil at his liquor store and inquired as to how he obtained the travelers checks. Stancil furnished information indicating he received the checks from William H. Kenny. Stancil agreed to compare the signature on the stolen checks to signatures which he kept on file at his business. As a result, he also provided Agent Malinchak with fifteen personal checks, written by people from various states, made payable to the Washington National Cathedral. Each bore Kenny's personal endorsement.
Agent Malinchak then contacted Kenny, who admitted that he accepted the travelers checks and claimed that a "Lawrence Williams" had negotiated the checks for items at his thrift store. Kenny claimed that he kept receipts for all sales in his shop, but was unable to produce one for Williams' transactions. At Kenny's prompting, Sheila Wormley, his clerk, confirmed that Williams negotiated the travelers checks and that she accepted them. Kenny described Williams as a very dark-skinned man, about 5'7" to 5'9" in height, weighing 200 pounds, and wearing a mustache. Kenny added that Williams was a crack user and drove a red and white Lincoln or Cadillac with District of Columbia license plates. According to Kenny, Williams was a regular customer who usually appeared on Fridays or Saturdays. Agent Malinchak conducted surveillance of the thrift shop the following Friday, but despite Kenny's assurances, Williams failed to appear. Agent Malinchak then investigated persons with the name "Lawrence Williams" by reviewing driver's license records at the D.C. Department of Motor Vehicles. No person matching the description given by Kenny was found.
On June 24, 1991, Agent Malinchak interviewed Kenny again. Kenny claimed that Williams was in the store two days before, but that he now remembered that it was not Williams who negotiated the travelers checks. Instead, he stated that an individual he knew as "Bernard" negotiated the checks and that Bernard drove a red and white Cadillac or Lincoln with District of Columbia license plates DX36697. Upon investigation, the FBI discovered the license plates were stolen in April 1991. Subsequently, Kenny claimed that he had transposed two of the digits in the license plate number. The new number, however was not on file with the D.C. Department of Motor Vehicles.
Kenny then told Agent Malinchak that Sheila Wormley had information, or could supply information, about Bernard. On June 26, Kenny and Agent Malinchak drove around the neighborhood, unsuccessfully searching for Bernard and his vehicle.
Agent Malinchak questioned Kenny as to how he obtained the Washington National Cathedral checks. Kenny explained that he had taken members of his congregation, along with some of their friends and relatives, on a tour of the Cathedral. According to Agent Malinchak, Kenny stated that in appreciation for the tour, these people provided him with various checks for whatever they could afford. Kenny alleged that the checks were made payable to the Washington National Cathedral since they were in payment for his tour service of the Cathedral.
Thereafter, the FBI concluded that Kenny was obstructing its investigation and subpoenaed Kenny and Wormley to appear before a grand jury on August 5, 1991. When Malinchak served Wormley, she informed him that Kenny had given her a piece of paper with Bernard's license plate number on it. She testified at trial that Kenny wanted her to represent to Agent Malinchak that she herself had gotten the license plate number. Following service of the subpoenas, Wormley stated that Kenny repeatedly urged her to give Agent Malinchak the piece of paper and instructed her as to what to say before the grand jury. He allegedly promised to pay Wormley the $175 he owed her if she would tell the grand jury what he wanted her to say.
On August 5, 1991, both Kenny and Wormley appeared before the grand jury. Wormley testified before Kenny and informed the grand jury that Kenny approached her and discussed with her what she should say before the grand jury.
Kenny was subsequently charged in a criminal complaint with obstruction of justice under 18 U.S.C. § 1503 for attempting to cause and induce a grand jury witness to withhold information and to provide false information. Following grand jury testimony on that charge, he was indicted under 18 U.S.C. § 1503 (Count I) for obstruction of justice and 18 U.S.C. § 1512 (Count II) for tampering with a witness.
At trial, Wormley testified, over defense counsel's objection, that when she returned home from giving her grand jury testimony, her apartment had been burglarized. The only thing she discerned missing was the piece of paper Kenny had given her with the license number written on it. She conceded, however, that she could not be sure that the slip of paper was stolen, that she did not know where she put it, and effectively that she could have lost it.
During Agent Malinchak's testimony, the district court admitted as evidence of motive under Fed.R.Evid. 404(b), the checks payable to the Washington National Cathedral which Kenny had negotiated. Collen Meehan, business manager of the Washington National Cathedral, testified that some of the makers of the checks were regular contributors to the Cathedral.
Louis Thomas-El, a friend of Kenny's, testified at trial that Kenny told him that he might earn as much as $300 if he testified that the defendant knew nothing about the stolen travelers checks--a subject which Thomas-El acknowledged he knew nothing about.
Following the close of testimony, the district court gave the following charge to the jury on the issue of intent:
The government need not prove that the defendant's only, or even main purpose was to obstruct the due administration of justice. It is sufficient if the government proves beyond a reasonable doubt the defendant intentionally undertook an act, or endeavored to effect an arrangement the reasonable, foreseeable and natural consequences of which would be to obstruct justice.
(Transcript, Joint Appendix (J.A.) 161).
Subsequently, the jury found Kenny guilty under the first count for obstruction of justice under 18 U.S.C. § 1503, and not guilty under the second count for tampering with a witness under 18 U.S.C. § 1512. This appeal followed.
As noted, four issues are raised on appeal. Each is addressed in turn.
Kenny first argues that 18 U.S.C. § 1503 does not criminalize the corrupt persuasion of a grand jury witness, but instead such conduct falls solely under 18 U.S.C. § 1512. Kenny bases his argument on Congress' enactment of the Victim and Witness Protection Act in 1982. Pub.L. No. 97-291 (1982), 96 Stat. 1248 (). By enacting the new statute, Congress removed from 18 U.S.C. § 1503 references to witnesses and enacted a new section, 18 U.S.C. § 1512, which specifically addressed witnesses. As a result of the 1982 Act, and a later amendment, 18 U.S.C. § 1503 reads as follows:
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Id. (emphasis added). Section 1512 reads:
Tampering with a witness, victim, or an informant
(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
(1) influence, delay, or prevent the testimony of any...
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