U.S. v. MacCloskey

Decision Date17 June 1982
Docket NumberNo. 81-5054,81-5054
Citation682 F.2d 468
Parties10 Fed. R. Evid. Serv. 1206 UNITED STATES of America, Appellee, v. Jack Randall MacCLOSKEY, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Johnny S. Gaskins, Raleigh, N. C., for appellant.

David B. Smith, Asst. U. S. Atty., Greensboro, N. C. (Kenneth W. McAllister, U. S. Atty., Greensboro, N. C., Becky M. Strickland, Paralegal Specialist on brief) for appellee.

Before MURNAGHAN and SPROUSE, Circuit Judges, and MICHAEL, * District Judge.

MURNAGHAN, Circuit Judge:

On October 27, 1980, a three count indictment was returned in the United States District Court for the Middle District of North Carolina. Count One charged appellant Jack Randall MacCloskey and others 1 with conspiracy to murder a federal agent, Drug Enforcement Administration Special Agent Skaggs, in violation of 18 U.S.C. §§ 1114 and 1117. Count Two of the indictment charged MacCloskey and others (the same alleged coconspirators as in Count One) with conspiracy to obstruct the administration of justice by killing Steve Lansley, a potential government witness (by blowing him up with dynamite), in violation of 18 U.S.C. §§ 371, 1503 and 844(d). 2

The case was tried before a jury which found MacCloskey guilty on both counts. After consolidating the two counts for judgment, the trial judge sentenced MacCloskey to twenty-five years imprisonment.

MacCloskey appeals his conviction raising a number of contentions. At oral argument, MacCloskey argued that the evidence was insufficient to establish a conspiracy under either count. In addition, MacCloskey urged that the district court's failure to admit prior testimony of a key defense witness, Patsey Elaine Edwards, was prejudicial error.

We have concluded that the evidence did not, as a matter of law, prove a conspiracy to kill Agent Skaggs, as alleged in Count One of the indictment. Although the evidence was legally sufficient to support the guilty verdict in Count Two (conspiracy to murder Lansley), the exclusion of Patsey Elaine Edwards' prior testimony and the presence of prosecutorial interference inducing her not to testify force us to grant a new trial on Count Two.

A. The Evidence

Viewing the evidence in the light most favorable to the government, the following was proven at trial.

During January, 1980, Steve Lansley met MacCloskey in Rockford, Illinois, and discussed some marijuana which was coming into Chicago. 3 At that time, Lansley was a Drug Enforcement Administration informant. Lansley arranged a meeting between DEA Special Agent Skaggs and MacCloskey in Rockford to discuss drug transactions.

As a result, Lansley and Skaggs flew to North Carolina to purchase methaqualone (quaalude) tablets from MacCloskey. Upon their arrival in North Carolina, Lansley and Skaggs drove to a motel where they met Pete Honeycutt. Honeycutt accompanied Lansley and Skaggs to MacCloskey's farm outside of Troy, North Carolina. While there, Skaggs purchased 5,000 methaqualone tablets before he and Lansley left the farm. In late July, MacCloskey informed Lansley about the availability of cocaine.

In August, Lansley flew down to Florida and received a call from a female who identified herself as "Mom." She told him that she had the cocaine but that MacCloskey had not made his plane and would not arrive in Fort Lauderdale that day. MacCloskey called Lansley to tell Lansley that he had missed his flight and to go ahead with the cocaine purchase. After meeting "Mom" and Miquel Vedaurre at a shopping center, Lansley was brought to a condominium where he tested three kilo bundles of cocaine and marked them for identification.

The next day, August 8, 1980, DEA Agents Skaggs and Mann arrived with the money. MacCloskey and Vedaurre arrived at the hotel where Skaggs and Mann were staying and were shown the money. MacCloskey went outside and returned with the three bundles of cocaine initialed by Lansley the day before. After the delivery of the cocaine, MacCloskey and Vedaurre were arrested by the agents.

Melvin (Pete) Douglas Honeycutt, a government informant, testified that he had known MacCloskey and MacCloskey's girlfriend, Patsey Elaine Edwards, for about a year and half. In late May, 1980, at MacCloskey's request, Honeycutt introduced MacCloskey to a Hell's Angel called "Ronny" at Honeycutt's gun shop in Charlotte, North Carolina. Thereafter, MacCloskey sold quaaludes to the Hell's Angels with Honeycutt acting as the middleman.

A day after MacCloskey's arrest for the cocaine sale, Edwards called Honeycutt and advised him that Steve Lansley was an informer and "Danny" was a DEA agent. 4 She told Honeycutt that MacCloskey and Mike (Vedaurre) had been arrested in Florida on a cocaine buy and she warned Honeycutt against talking to anyone. Later that day, Honeycutt went to Edwards' residence to bring her the money he had obtained from a quaalude sale to the Hell's Angels. While Honeycutt was there, MacCloskey called from jail and told Honeycutt that Lansley was an informer and Skaggs was a DEA agent. MacCloskey warned against talking to anyone.

On August 10, 1980, Honeycutt was approached by Alcohol, Tobacco and Firearms Special Agent Jerry Pistole whom Honeycutt had known since 1975. Agent Pistole told Honeycutt that he knew of Honeycutt's association with MacCloskey and asked if Honeycutt would cooperate with the DEA and ATF. Honeycutt agreed. 5

On August 13, MacCloskey went to Honeycutt's store to ask Honeycutt to get in touch with the Hell's Angels and see if they could do something about Lansley. Venting his anger, MacCloskey said that he would like to kill Lansley personally.

On August 16, Honeycutt testified that he went to Edwards' house. She reiterated that Lansley was an informer and said she wanted something done about it. She asked Honeycutt if he could get in touch with the Hell's Angels. She found a picture of Lansley and MacCloskey together. Cutting the picture in half, she gave Honeycutt the Lansley portion.

On August 26, Honeycutt went to Edwards' residence. Edwards, MacCloskey and another couple were present. MacCloskey took Honeycutt aside. Very agitated, he told Honeycutt "I've got to kill a cop." MacCloskey discussed the possibility of making a "contract" on Lansley and Skaggs.

On August 27, Honeycutt telephoned MacCloskey and inquired whether MacCloskey was really serious about the contract. MacCloskey replied in the affirmative. Later that evening, MacCloskey came by Honeycutt's shop and informed Honeycutt that there had been a $30,000 "reward" put up in Florida ($15,000 for Skaggs and $15,000 for Lansley). The reward required that the killings take place so the bodies could not be recovered.

On August 29, Honeycutt called Edwards and asked her if she remembered giving him the half photo depicting Lansley and whether she would like to meet with someone who could handle the matter. She said she remembered the picture but that she didn't want to meet with anyone. She told Honeycutt he should talk to MacCloskey about it.

On August 31, Honeycutt went to Edwards' house at MacCloskey's request. In Edwards' presence, MacCloskey mentioned that he was concerned about the half photo falling into unfriendly hands. Honeycutt assured him that there was no need to worry. Honeycutt asked whether MacCloskey had a better photo of Lansley since the half picture was not very good. MacCloskey took a picture of Lansley out of his briefcase and told Honeycutt to give it to the Hell's Angels.

The next morning Honeycutt met Edwards and MacCloskey for breakfast. MacCloskey again expressed concern over the half photo of Lansley turning up. Since Edwards had told Honeycutt not to say anything to MacCloskey when she first gave the half photograph to him, Honeycutt assured Edwards that he had not said anything to MacCloskey about it. She responded that it was all right since Edwards and MacCloskey had already discussed it. MacCloskey mentioned that he trusted Edwards.

Honeycutt testified that Edwards was present when they began talking generally about the "contract." The specific topics of the conversation, however, were not mentioned in the testimony. After breakfast, he and MacCloskey drove to Edwards' house in one car and she left in her own car. At the house, MacCloskey talked about using explosives so that no trace of the bodies could be found. 6

On September 2, MacCloskey gave Honeycutt a picture of Agent Skaggs. MacCloskey first cut out the background of the picture with a pocketknife so that tracing the picture back to him would be impossible.

On September 6, Honeycutt told MacCloskey that the alleged hitmen were in Chicago. Honeycutt reminded MacCloskey that killing a federal agent was a serious offense. Undaunted, MacCloskey wanted to proceed. MacCloskey promised that the hitmen would get their money, but he wanted a picture as proof that the job was done. 7 Fearing that Edwards might be a weak link, MacCloskey admonished Honeycutt not to talk about the contract in front of her anymore.

Since the beginning of September, Honeycutt had informed MacCloskey that a downpayment would be necessary. Although reluctant, MacCloskey finally agreed to putting up collateral on September 13. On that day, he delivered a Star Light scope (estimated value $7,000) and an ivory statue (estimated value $18,000) to Honeycutt. Later Honeycutt called Edwards and asked her whether she would be willing to part with the scope and ivory piece if they were acceptable to Honeycutt's "friends." She said she would if the price was right.

Contact continued between MacCloskey and Honeycutt during the middle of September concerning the contract. In particular, the acquisition of dynamite for the job and the source of the award money were the prime topics of conversation during the period.

On September 28, MacCloskey asked Honeycutt to meet him at Edwards' house. When Honeycutt arrived, MacCloskey took out of his truck a box...

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