U.S. v. Lowe

• Decision Date: 20 September 1995
• Docket Number: No. 94-5713,94-5713
• Citation: 65 F.3d 1137
• Parties: 150 L.R.R.M. (BNA) 2334 UNITED STATES of America, Plaintiff-Appellee, v. Jerry Dale LOWE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1137

65 F.3d 1137

150 L.R.R.M. (BNA) 2334

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Dale LOWE, Defendant-Appellant.

No. 94-5713.

United States Court of Appeals Fourth Circuit.

Argued July 13, 1995.

Decided Sept. 20, 1995.

ARGUED: Rebecca Ann Baitty, Lutz, Webb, Partridge, Bobo & Baitty, P.A., Sarasota, FL, for appellant. John Castle Parr, Assistant United States Attorney, Charleston, WV, for appellee. ON BRIEF: Charles T. Miller, Acting United States Attorney, Michael L. Keller, Assistant United States Attorney, Charleston, WV, for appellee.

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge NIEMEYER joined. Judge MOTZ wrote a dissenting opinion.

OPINION

HAMILTON, Circuit Judge:

Appellant, Jerry Dale Lowe (Lowe), appeals his conviction and sentence for three violations of 18 U.S.C. Sec. 33 and one violation of 18 U.S.C. Sec. 924(c)(1). For reasons that follow, we affirm.

I

The events giving rise to Lowe's criminal prosecution occurred on July 22, 1993, at a picket line during a national strike by the United Mine Workers of America (UMWA). As part of the strike, which began on May 18, 1993, Local 5958 of the UMWA began a work stoppage at a surface mine in Logan County, West Virginia. The mine, known as the Ruffner Mine, was operated and owned by Apogee Coal Company, d/b/a "Arch of West Virginia" (Arch). The coal mined from the Ruffner Mine was distributed to various states in the United States.

Arch regularly employed Blackhawk Security and Investigators to provide security services when the mine was not on strike. However, after being selected by the UMWA as one of the targets of the national strike, Arch contracted with Elite Security Company (Elite), a North Carolina corporation. Elite assumed the responsibility of providing security services for safeguarding personnel, supplies, and equipment of Arch and its subcontractors.

The picket line at issue was not at the entrance to the Ruffner Mine, but rather on a road, Slab Fork Hollow Road, which leads to the entrance of the Orion Mine, a mine not selected as a target by the UMWA. The picket line on Slab Fork Hollow Road was established, among other reasons, because the Orion Mine, which was not a target of the UMWA, continued to mine coal for Arch during the strike.

Slab Fork Hollow Road runs from Rum Creek Road into a hollow where it eventually leads to the entrance to Orion Mine and a sediment pond used by Arch. ¹ The picket line was located on Slab Fork Hollow Road a short distance from the point where Slab Fork Hollow Road and Rum Creek Road intersect. The picket line was also close to an access road which ran perpendicular to Slab Fork Road; the access road was on the left when travelling away from Rum Creek Road toward the Orion Mine and the sediment pond. ²

Prior to the strike, Arch contracted with Deskins Contracting (Deskins) to provide environmental services to the sediment pond on Slab Fork Hollow Road utilized by the Ruffner Mine. ³ After receiving a citation for a violation of the environmental laws, which could have led to the closing of the Ruffner Mine, Arch contracted with Deskins to clean the sediment pond.

On July 22, 1993, heavy equipment was taken to the sediment pond to perform the legally-mandated environmental corrections. Two Deskins employees, Marion Hensley (Hensley) and John Edward York (York), were assigned to travel to the sediment pond in separate company trucks owned by Deskins and to remove sludge from the sediment pond. Hensley arrived at the sediment pond on the morning of July 22, 1993, and was later joined by York between 12:30 p.m. and 1:00 p.m.

Various union pickets appeared at the picket line pursuant to their shift obligations. Although Lowe was not scheduled to work the picket line on July 22, 1993, he arrived at the picket line sometime between noon and 1:00 P.M. When Lowe learned that the Deskins' equipment had passed the picket line travelling to the sediment pond, he left the area, and returned to his home, which was located nearby. Once at his home, Lowe telephoned the president of Local 5958, Ernest Lee Woods (Woods). Lowe left a message for Woods regarding the heavy equipment's arrival at the sediment pond and insisted that he come to the picket line. Lowe then returned to the picket line. While Lowe was at the picket line that day, he drank Budweiser Light beer ⁴ and stopped the second-shift Orion miners from reporting to work. ⁵

At approximately 5:00 p.m., a Ford Bronco driven by Larry Kopplin of Elite and a Chevrolet Club Cab driven by another employee of Elite, left the guard shack at the entrance of the Ruffner Mine to provide an escort through the picket line for Hensley and York. ⁶ As the two-car convoy travelled up Slab Fork Hollow Road and passed the picket line, the Ford Bronco was hit by a steel ball shot from a wrist rocket launched by one of the pickets. The ball hit the Ford Bronco below the glass on the passenger side. As the security vehicles were proceeding up Slab Fork Hollow Road toward the sediment pond, the pickets heard a loud noise, which some pickets believed to be a backfire. Others believed the noise was a firecracker, and still others thought it was a gun shot resulting from one of the security guards firing into the air.

Woods was one of the pickets who believed that the security guards had fired a shot to intimidate the pickets. Angered by this action, Woods, along with other pickets gathered to discuss an appropriate response. At this meeting, the pickets decided to ambush the vehicles when they returned.

Collectively, the pickets began taking positions for the attack, masking themselves and gathering rocks as they waited for the trucks to return. Most of the pickets took positions on the access road. Two pickets, Luther Shell and Larry Perry, took positions on the side of Slab Fork Hollow Road opposite the creek. Lowe positioned himself in a wooded-area along the creek side of Slab Fork Hollow Road; this area was in a direction away from the access road toward the Orion Mine and the sediment pond utilized by Arch.

At approximately 5:30 p.m., the convoy of four vehicles, lead by Kopplin in the Ford Bronco, started down Slab Fork Hollow Road, followed by York's pick-up truck, the truck driven by Hensley, and finally the Chevrolet Club Cab driven by another employee of Elite. Before they reached the area where the pickets gathered, Hensley and York stopped their vehicles to have a discussion. According to Hensley, York stated that he was afraid to go ahead of Hensley and asked Hensley to go in front of him. Hensley and York then switched the positions of their trucks, with Hensley going in front of York.

As the vehicle driven by Kopplin approached the area where the pickets were waiting, his Ford Bronco was pelted by rocks, smashing the windshield. Hensley's vehicle suffered the same attack, with his windshield being broken. When York saw the rock attack, he initially slowed down and then sped up. As York was approaching the rock throwers, a bullet, fired from the creek side of Slab Fork Hollow Road from the area Lowe had positioned himself, entered the rear window of his pick-up truck, striking York in the head and killing him instantly. York's vehicle came to rest on the side of Slab Fork Hollow Road opposite the creek. The Chevrolet Club Cab's back passenger window was also struck by a bullet from the same area on the creek side of Slab Fork Hollow Road.

When Kopplin attempted to aid York, the pickets continued to throw rocks until Woods realized that York was seriously injured and told them to stop. At that time, the pickets complied. The pickets then began running in a direction away from the vehicle in which York lay dead.

Following the report of the shooting, the West Virginia State Police appeared at the scene with Corporal Bob Johnson (Johnson) taking the lead in the investigation. Statements were taken that night from a number of the miners who were present at the picket line. In his statement, Lowe admitted to participating in the rock attack, but specifically denied that he had been drinking.

The continuing investigation in the case revealed that the bullet that entered the back of York's head had a "left-hand twist," which immediately suggested to the officers that they were looking for a Colt-manufactured pistol. A Colt Trooper Mark III pistol was known to be a pistol that could produce a "left-hand twist" marking on a bullet. It was later learned that Lowe, on a day previous to the day York was killed, possessed a Colt Trooper Mark III pistol at the picket site, having transported it to the picket site in his truck. On two occasions during the investigation, Johnson and FBI Agent Brad Hoffert asked Lowe if he had ever owned, traded, or possessed a Colt Trooper pistol. On each occasion, Lowe denied owning, possessing, or trading such a pistol.

The investigators later learned that William Lowe, Lowe's nephew, had brought a stolen .357 Colt Trooper Mark III pistol to West Virginia from Marseilles, Illinois, on July 10, 1993, showed the weapon to Lowe on or about July 12, 1993, and gave it to him approximately two days later. Approximately three months after the ambush, the government recovered the Colt Trooper Mark III pistol possessed by Lowe and William Lowe when it was turned over to the government by the attorney for Lawton Jack Starkey (Starkey). ⁷ At trial, Lowe testified that he sold the weapon to Starkey "[a] week to two weeks" prior to the ambush. (J.A. 785).

On November 2, 1993, a grand jury sitting in the Southern District of West Virginia returned a four-count indictment against Lowe and seven others. Count one charged Lowe and seven others with conspiring to willfully, with reckless disregard for the safety of human life, attempt to damage and disable a motor vehicle which was being used in interstate commerce, and likewise to...