U.S. v. Lindemann

• Decision Date: 01 July 1996
• Docket Number: No. 96-1188,96-1188
• Citation: 85 F.3d 1232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George LINDEMANN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1232

85 F.3d 1232

UNITED STATES of America, Plaintiff-Appellee, v. George LINDEMANN, Jr., Defendant-Appellant.

No. 96-1188.

United States Court of Appeals Seventh Circuit.

Argued April 12, 1996.

Decided June 4, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied July 1, 1996.

Barry Rand Elden, Chief of Appeals, R. Christopher Cook (argued), Office of U.S. Atty., Crim. Appellate Div., Chicago, IL, for U.S.

Dan K. Webb (argued), Thomas J. Frederick, Todd J. Ehlman, Bruce L. Bower, Winston & Strawn, Chicago, IL, Jay Goldberg, New York City, for George Lindemann, Jr.

Before CUMMINGS, COFFEY and MANION, Circuit Judges.

CUMMINGS, Circuit Judge.

"Charisma," a show horse, died in its stall on the night of December 15, 1990. The insurance company that had issued a policy on Charisma's life concluded that the death was the result of natural causes and paid the $250,000 value of the policy. Subsequently, the Federal Bureau of Investigation uncovered an alleged conspiracy between Tommy Burns and Barney Ward to kill horses for pay, allowing the horses' owners to collect insurance proceeds. Burns gave the FBI information indicating that George Lindemann, Jr. ("Lindemann"), a partial owner of Charisma, had arranged the horse's death in order to gain the proceeds of its life insurance policy. Lindemann was tried and convicted of three counts of wire fraud in violation of 18 U.S.C. § 1343. He appeals that conviction and we affirm.

I.

The following is a synopsis of Burns' testimony at trial. Ward ¹ had arranged for Burns to kill fourteen horses for pay prior to Charisma's death. On December 13, 1990, Ward called Burns in Chicago and told him that he could make a lot of money by coming to New York to kill a horse for a man Ward identified as "Lindemann." Burns then called Ward's travel agent in New York to book a flight from Chicago to White Plains, New York. Burns arrived in White Plains at 10:18 a.m. on December 15, 1990, and made his way by car to Ward's residence in Brewster, New York--"Castle Hill." The trip took him longer than expected because of icy road conditions. Upon his arrival, Ward told him to call "Cellular Farms," the horse farm of the Lindemann family, and to speak to Marion Hulick, Lindemann's horse trainer and a co-defendant in this action. Two sequential calls were then made by Burns to Hulick at Cellular Farms.

Hulick told Burns that "they had a horse which needed to be killed at their farm." One of Ward's employees drove Burns to Cellular Farms at around 4:00 p.m. where he was taken directly to Hulick's apartment. In the apartment, Burns met Gerald Shepard, an acquaintance who was inquiring about a position at Cellular Farms. Outside of Shepard's hearing, Hulick told Burns that the killing had to be completed that day because "George" wanted it done while he was in Asia and because Charisma was scheduled to travel to Florida the next day. Hulick told Burns that the amount of the insurance policy was $250,000 and Burns demanded ten percent of the proceeds in exchange for the killing. Hulick responded that "George" would pay whatever it took.

Burns, Hulick and Shepard then drove to a remote area of the farm so that Hulick could point out a back road by which Burns could enter the premises that night. The three then went to the stable area. To indicate which horse was to be killed, Hulick entered the stall of only one horse, whose name plate read "Charisma." Prior to Burns' departure, Hulick assured him that she would see to it that the staff was out that night and that she would lock up the dogs so that his presence would not be detected. Burns then checked into a nearby hotel and purchased electrical cords and other equipment. At about 10:00 p.m. that night, he entered Cellular Farms by way of the back road and electrocuted Charisma in its stall.

Burns' testimony was corroborated through the following testimony and evidence. A colleague of Burns, Harlow Arlie, testified that prior to December 15, 1990, Burns told him that he had arranged a profitable horse killing for "a man in New York who owned a phone corporation." Lindemann's father, George Lindemann, Sr., is a successful businessman in the cellular telephone industry, and Lindemann owns 20 percent of his father's corporation. Weather records confirmed that there were ice storms in the area around Cellular Farms on December 15, 1990. Phone records confirmed that two calls were made from Castle Hill to Cellular Farms at the time identified by Burns. Two of Lindemann's employees confirmed Burns' detailed description of the Cellular Farms premises, including the specifics of a statue in the courtyard and a description of the brass poles containing electrical outlets in each of the horses' stalls. Shepard testified that when Burns arrived at Cellular Farms, Burns and Hulick had a conversation out of his hearing. He also testified that Hulick then drove him and Burns to a remote area of the farm and told Burns, "This is a seldom used road. You can park here and come back." Shepard further confirmed that on the tour of the stables, Hulick entered the stall of only one horse--Charisma. Records confirmed that Lindemann was in Asia from November 23, 1990, to December 22, 1990, and that Charisma was scheduled to travel to Florida on December 16, 1990. Colleen Reed, an employee at Cellular Farms, testified that she was taken out to dinner by Hulick on the night of December 15, 1990. She testified that this was odd because it broke a strictly enforced Cellular Farms rule requiring someone to remain on the premises at all times. Reed testified that when she pointed out to Hulick that no one would be left to monitor the stables, Hulick brushed this fact aside. Reed then found Charisma dead in its stall the morning of December 16, 1990 and observed blood in its nostrils and manure. Finally, it was generally known at Cellular Farms that both Lyman Whitehead and Molly Ash had ridden Charisma in competitions. However, after Lindemann filed the insurance claim for Charisma's death, he specifically told Reed and another employee to lie to the insurance investigators by telling them that Lindemann and his sister were the only people who had ridden Charisma. Lindemann then told the investigators the same thing.

II.

Lindemann argues that his conviction should be reversed for four reasons. First, he claims that the evidence was insufficient to establish that it was he who ordered Charisma's killing. Second, he argues that even if it was sufficiently established that he ordered the killing, the evidence was still insufficient to prove that the use of interstate wires in furtherance of the scheme to defraud was reasonably foreseeable to him. Third, he argues that the government improperly bolstered Burns' credibility. Finally, he argues that the government engaged in improper conduct during closing argument, depriving him of his right to a fair trial. We address each argument in turn.

A.

The government's case against Lindemann was as follows: (1) Lindemann defrauded his insurance carrier by ordering Hulick to have Charisma killed; (2) Hulick carried out this order by bringing in Ward to aid in hiring a killer; (3) Ward brought in Burns; and (4) Burns admitted that he did the killing. Burns' testimony regarding his conversations with Ward, his meeting with Hulick at Cellular Farms, and his electrocution of Charisma was corroborated by other testimony and evidence. Furthermore, Lindemann stipulated to Burns' long relationship with Ward regarding the killing of numerous horses for pay. Thus the evidence strongly indicated that a conspiracy to kill Charisma existed, and that it contained the following members: (1) Burns, who did the killing; (2) Ward, who set up the contact between Cellular Farms and Burns; (3) Hulick, who pointed out to Burns the method of entrance to Cellular Farms and which of the horses was Charisma; and (4) some unknown conspiracy member, who ordered the killing and planned to pay Burns for doing it. Lindemann's contention is that the government presented insufficient evidence to prove that he was that unknown member.

Identification of the defendant as the person who committed the crime is certainly an essential element of any offense. United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir.1995), certiorari denied, --- U.S. ----, 116 S.Ct. 210, 133 L.Ed.2d 142 (1995). However, in making a challenge to the sufficiency of the evidence, one bears a "heavy burden." United States v. James, 923 F.2d 1261, 1267 (7th Cir.1991). This Court will reverse a conviction for insufficient evidence only if, after reviewing the evidence in a light most favorable to the government, it is determined that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Brandon, 50 F.3d 464, 467 (7th Cir.1995).

The evidence identifying Lindemann as the unknown member rested specifically on the following testimony of Burns: (1) Ward told Burns that he could make a lot of money coming to New York to kill a horse for a man named "Lindemann"; (2) Hulick told Burns that "George" wanted the killing done while he was in Asia; and (3) Hulick told Burns that "George" would pay whatever it took. Lindemann asserts that these statements were improperly admitted into evidence. If he is wrong, these statements clearly constitute sufficient evidence for the jury to conclude that it was indeed Lindemann who ordered the killing. Unfortunately for Lindemann, because he waived this issue by failing to object when the statements were admitted in the district court, ² we must review the decision to admit the statements for plain error only. United States v. Olano, 507 U.S. 725, 732-734, 113 S.Ct. 1770, 1776-1778, 123 L.Ed.2d 508 (1993). Under this standard, Lindemann must prove that there was an error, that it was plain, and that it affected his substantial rights and the fairness, integrity or public reputation of the...