U.S. v. Kingrea

• Decision Date: 20 July 2009
• Docket Number: No. 08-5065.,08-5065.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Leo KINGREA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

573 F.3d 186

UNITED STATES of America, Plaintiff-Appellee, v. Charles Leo KINGREA, Defendant-Appellant.

No. 08-5065.

United States Court of Appeals, Fourth Circuit.

Argued: March 27, 2009.

Decided: May 28, 2009.

Filed: July 20, 2009.

ARGUED: Paul Graham Beers, Glenn, Feldmann, Darby & Goodlatte, Roanoke, Virginia, for Appellant. Anthony Paul Giorno, Office of the United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: Julia C. Dudley, United States Attorney, Ashley B. Neese, Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before WILLIAMS, Chief Judge,¹ and SHEDD and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge AGEE wrote the opinion, in which Judge SHEDD joined.

OPINION

AGEE, Circuit Judge:

On September 18, 2007 a federal grand jury in the Western District of Virginia returned a true bill of indictment on four counts against Charles Kingrea alleging various crimes arising out of his involvement with a cockfighting operation in Page County, Virginia. At the close of the government's case Kingrea moved for judgment of acquittal on all four counts in the indictment on multiple grounds. The district court dismissed Count III but denied Kingrea's motion with respect to the other counts. The jury subsequently found Kingrea guilty on the three remaining counts.

At sentencing, the district court rejected the probation officer's recommended two-level reduction for acceptance of responsibility under Section 3E1.1(a) of the United States Sentencing Commission Guidelines Manual. The district court sentenced Kingrea to six months of incarceration followed by six months of home confinement and eighteen months of supervised release. Kingrea appeals the district court's denial of his motion for judgment of acquittal and the court's refusal to grant the two-level reduction under the advisory Sentencing Guidelines. For the reasons that follow we vacate Kingrea's conviction under one count of the indictment and remand to the district court for resentencing. We affirm the district court's judgment in all other respects.

I.

On May 5, 2007 federal agents from the United States Department of Agriculture raided a cockfighting enterprise at a "cockpit" known as "Little Boxwood" in Page County, Virginia. For the past thirty years cockfighting derbies had been routinely held at Little Boxwood. Roosters often fought in contests where each rooster wore sharpened spurs, called gaffs, lashed to their heels. At the time of the 2007 raid, cock owners paid entrance fees of between $75 and $400 (part of which became the prize purse) while spectators paid $15 for admission to watch the cockfights. Spectators routinely gambled on the bouts.

Charles Kingrea was arrested during the raid on May 5th. Kingrea was neither an owner nor operator of Little Boxwood but was instead the proprietor of a makeshift retail stand where he sold various cockfighting supplies, including gaffs, vitamins, medicines, straps, string, adhesives, and knives. Although Kingrea had occasionally entered his own roosters in cockfights at Little Boxwood, he had last done so more than a year before the May 5, 2007 raid.

The raid occurred before the gaff derby scheduled for that day and Kingrea had only been selling his wares for a short time before the federal agents shut down Little Boxwood. Kingrea testified that his only sale on the day of the raid had been a strand of moleskin to a derby entrant; he had not yet sold any knives or gaffs although they were available for sale.

As a result of the Little Boxwood raid, a federal grand jury indicted Kingrea on four counts. Count I alleged that Kingrea participated in a conspiracy based on two predicate offenses: first, sponsoring or exhibiting "an animal fighting venture" in violation of 7 U.S.C. § 2156(a)(1), and second, conducting an illegal gambling business involving cockfighting in violation of Virginia law and 18 U.S.C. § 1955. Count II charged Kingrea with conspiracy to "sell, buy, transport and deliver in interstate commerce a knife, a gaff or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture" in violation of 7 U.S.C. § 2156(e). Count III charged Kingrea with the substantive crime of aiding or abetting the sponsoring or exhibiting of "an animal fighting venture" in violation of 7 U.S.C. § 2156(a)(1). Count IV alleged that "as principals and/or aiders and abettors," Kingrea and others "did unlawfully and knowingly conduct ... an illegal gambling business, said gambling business involving betting on cockfighting ..." in violation of the laws of the Commonwealth of Virginia, 18 U.S.C. § 2, and 18 U.S.C. § 1955.

At the close of the government's case-in-chief Kingrea moved for judgment of acquittal pursuant to Rule 29 of the Rules of Criminal Procedure on several grounds: (a) that the government's evidence was insufficient, (b) that the grand jury failed to allege the statutory elements of the federal crimes in Counts I and III, (c) that the evidence failed to establish a violation of the Virginia statutes set forth in Counts I and IV, and (d) that the government failed to establish the necessary nexus with interstate commerce to support a conviction under Count II. The district court granted Kingrea's motion with respect to Count III but denied the motion in all other respects.

At the close of the case the district court instructed the jury as follows:

I tell you that in order to reach a verdict of guilty as to Count One, the jury need only find beyond a reasonable doubt that the defendant conspired to engage in conduct which, if carried out, would violate one of these statutes, either Title VII United States Code Section 2156(a)(1) pertaining to animal fighting ventures or Title 18 United States Code Section 1955 pertaining to illegal gambling businesses.

I charge you that Title VII United States Code Section 2156(a)(1) makes it a crime for anyone to knowingly sponsor or exhibit an animal in an animal fighting venture if any animal in the venture was moved in interstate commerce.

J.A. 235 (emphasis added).

The jury found Kingrea guilty on the three remaining counts and a presentence report was prepared. The probation officer responsible for preparing the presentence report recommended a two-point reduction in the base offense level under Section 3E1.1(a) of the United States Sentencing Guidelines for Kingrea's willingness to accept responsibility for his actions. Despite the government's lack of an objection, the district court found that Kingrea did not accept responsibility for his actions and rejected the probation officer's recommendation. In a sentence covering all counts of conviction, the district court ordered that Kingrea be incarcerated for six months followed by six months of home confinement and eighteen months of supervised release.

Kingrea timely appeals his convictions on each count and the district court's refusal to grant a two-point reduction under Section 3E1.1(a) of the Sentencing Guidelines. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3472(a)(2).

II.

Count I of the indictment alleged that Kingrea violated 18 U.S.C. § 371 by conspiring with others to commit two distinct federal offenses:

to knowingly sponsor and exhibit an animal fighting venture, in which any animal in the venture was moved in interstate commerce, in violation of Title 7, United States Code, Section 2156(a)(1); and, to unlawfully, willfully and knowingly conduct, finance, manage, supervise, direct and own all or part of an illegal gambling business, said gambling business involving betting on cockfighting, in violation of the laws of the State of Virginia (Va.Code Ann. §§ 18.2-325(1), 326, 328, 329 & 330, and 3.1-796.125), in which illegal gambling business involved during the period aforesaid, five or more persons who conducted, financed, managed, supervised, directed and owned all or a part thereof; and which gambling business remained in substantially continuous operation for a period in excess of thirty days, in violation of Title 18, United States Code, Section 1955.

Kingrea challenges his conviction for conspiracy under Count I by attacking the validity of each predicate offense. First, he argues that the indictment omitted one of the elements necessary for conviction under 7 U.S.C. § 2156(a)(1) and was therefore defective as a matter of law. Second, he avers that an exception contained in the Code of Virginia makes his conduct legal under Virginia law and therefore not in violation of 18 U.S.C. § 1955.

A.

"Whether an indictment properly charges an offense is a matter of law which we may consider de novo if the defendant makes a timely objection to the indictment." United States v. Darby, 37 F.3d 1059, 1062 (4th Cir.1994). When a criminal defendant challenges the sufficiency of an indictment prior to the verdict, we apply a heightened scrutiny. Cf. Finn v. United States, 256 F.2d 304, 307 (4th Cir. 1958) ("Indictments and informations are construed more liberally after verdict than before...."); United States v. Hooker, 841 F.2d 1225, 1229 (4th Cir.1988) (en banc) ("[I]n ... cases where the objection is made after verdict, the alleged deficiency is to be reviewed for validity under a more liberal standard and is not necessarily absolutely invalid.").

As we have previously recognized, `[a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.' United States v. Daniels, 973 F.2d 272, 274 (4th Cir.1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), cert. denied, 506 U.S. 1086, 113 S.Ct. 1064 (1993)). Moreover, the indictment must include every essential element of an offense, or...