U.S. v. McNeill

• Decision Date: 02 October 1989
• Docket Number: No. 89-3255,89-3255
• Parties: 28 Fed. R. Evid. Serv. 1263 UNITED STATES of America v. James P. McNEILL, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 448

887 F.2d 448

28 Fed. R. Evid. Serv. 1263

UNITED STATES of America v. James P. McNEILL, Appellant.

No. 89-3255.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Oct. 2, 1989.

Decided Oct. 11, 1989.

George E. Schumacher, Federal Public Defender, David G. Rothey, Asst. Federal Public Defender, Pittsburgh, Pa., for appellant.

Charles D. Sheehy, Acting U.S. Atty., Robert R. Leight, Asst. U.S. Atty., Pittsburgh, Pa., for appellee.

Before SLOVITER, GREENBERG and ROSENN, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Appellant James P. McNeill appeals from his conviction following a jury trial of violation of 18 U.S.C. Sec. 373(a), knowingly soliciting a person to commit a crime of violence, in this case the murder of McNeill's parole officer.

Because the offense took place after November 1, 1987, the Sentencing Reform Act was used in calculating McNeill's sentence. He was sentenced to a term of imprisonment of 96 months, a special assessment of $50.00, and to three years' supervision after release. The court denied McNeill's motion to reduce the range of sentencing because of what McNeill claimed was double factoring of the federal officer status of the intended victim.

McNeill filed a timely notice of appeal. On appeal, McNeill argues that there was insufficient evidence as a matter of law on which to base the conviction, that the trial court erred in limiting examination and cross-examination, and that he was subjected to double jeopardy in the application of the Sentencing Guidelines. We will consider each contention in turn.

II.

The solicitation statute under which McNeill was convicted provides,

(a) Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half of the maximum term of imprisonment or fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

18 U.S.C. Sec. 373(a).

McNeill argues that the evidence of solicitation to commit a violent crime was insufficient to convict him. In reviewing a claim of insufficiency of the evidence after a guilty verdict, the court must view the evidence and the inferences logically deducible therefrom in the light most favorable to the government, to determine if there is sufficient evidence to support the factfinder's verdict. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Clapps, 732 F.2d 1148, 1150 (3d Cir.), cert. denied, 469 U.S. 1085, 105 S.Ct. 589, 83 L.Ed.2d 699 (1984); United States v. United States Gypsum Co., 600 F.2d 414, 416-17 (3d Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979). "Only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir.1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 634 (1971).

Inferences from established facts are accepted methods of proof when no direct evidence is available so long as there exists a logical and convincing connection between the facts established and the conclusion inferred. See United States v. Bycer, 593 F.2d 549, 551 (3d Cir.1979). The fact that evidence is circumstantial does not make it less probative than direct evidence. Id.

The parties agree that to establish the crime of solicitation the government must prove by "strongly corroborative circumstances" that the defendant had the intent that another person engage in conduct constituting a crime described in Title 18, see United States v. Gabriel, 810 F.2d 627, 635-36 (7th Cir.1987), and that the defendant actually commanded, induced or otherwise endeavored to persuade the other person to commit the felony, see United States v. Buckalew, 859 F.2d 1052 (1st Cir.1988). See S.Rep. No. 225, 98th Cong., 2d Sess. 308 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3488. "The phrase 'otherwise endeavors to persuade' is designed to cover any situation where a person seriously seeks to persuade another person to engage in criminal conduct." S.Rep. No. 97-307, 97th Cong. 1st Sess. 183-84 (1982).

The Senate Report lists examples of "strongly corroborating circumstances" that are "highly probative" of intent to solicit:

(i) the fact that the defendant offered or promised payment or some other benefit to the person solicited if he would commit the offense;

(ii) the fact that the defendant threatened harm or other detriment to the person solicited if he would not commit the offense;

(iii) the fact that the defendant repeatedly solicited the commission of the offense, held forth at length in soliciting the commission of the offense, or made express protestations of seriousness in soliciting the commission of the offense;

(iv) the fact that the defendant believed or was aware that the person solicited had previously committed similar offenses;

(v) the fact that the defendant acquired weapons, tools, or information suited for use by the person solicited in the commission of the offense, or made other apparent preparations for the commission of the offense by the person solicited.

S.Rep. No. 307, 97th Cong., 1st Sess. 183 (1982) (footnotes omitted). However, as the Gabriel court stated, the above factors "are not exclusive or conclusive indicators of intent to solicit." Gabriel, 810 F.2d at 635 (footnote omitted). Indeed, the Senate Committee that considered a precursor to section 373 emphasized that " 'the existence of strongly corroborative circumstances [is] a question of fact for the jury.' " Id. at 635 n. 5 (quoting S.Rep. No. 307, 97th Cong. 1st Sess. 183 (1982)).

We turn therefore to an examination of the record in this case. The government produced evidence that McNeill was incarcerated at the Federal Correctional Institution in Loretto, Pennsylvania, and that during his incarceration McNeill had expressed animosity toward his probation officer, Edward J. Kosheba, in several conversations with inmates and corrections officers. One fellow inmate testified that McNeill had threatened to shoot Kosheba or use explosives to blow up his automobile. Kerry Anthony, the government's principal witness, who was also an inmate at Loretto, gave McNeill the name and address of "Timothy Anthony," who he pretended was his brother, as someone who could carry out McNeill's threats after McNeill approached him at least six times for help in recruiting a hitman. "Timothy Anthony" was an alias for DEA Special Agent Timothy Bucher who had worked with the prosecution of Anthony on drug charges, and with whom Anthony thereafter cooperated.

Timothy Bucher received two letters, both addressed to "Timothy Anthony." The first, dated August 16, 1988 and received on August 22, solicited an attack against McNeill's brother-in-law, Meril Winnick. The letter read:

DEAR TIM,

IN REFERENCE, TO THE CONVERSATION YOUR BROTHER AND I HAD ABOUT, A CERTAIN MAN NAMED MERIL WINNICK, ALL I CAN FIND OUT, IS THAT HE LIVES IN THE SUBURBS OF PHILADELPHIA, PA. HAS AN UNLISTED PHONE NUMBER, BUT HE IS THE ONLY ONE LISTED IN THAT AREA. HE ALSO, IS THE MANAGER OF A SELF GAS STATION, I DON'T KNOW THE NAME OF IT, IN FACT THERE ARE SEVERAL OF THEM IN PHILADELPHIA. HIS WIF'S * * NAME IS ALICE, THEY GOT RE-MARRIED, SOME TIME IN 1986. HE'S BEEN IN THAT AREA FOR AT LEAST 20 YEARS. HE'S PAST 50 YEARS OLD, MAKE SURE THIS PIECE OF CRAP HAS SOME BAD PERMANENT INJURIES, AND I HOPE YOU CAN GET IT DONE BEFORE LABOR DAY, BECAUSE I'M SURE HE WILL MAKE ANOTHER ATTEMPT * * ON MY WIFE.

VERY SINCERELY,

JAMES P. MCNEILL

App. at 355, Govt. Ex. 5.

The second letter, dated August 24, 1988 and received on August 29, which solicited the murder of Kosheba, read:

DEAR TIM;

AS I SAID BEFORE, THE THING CALLED MERIL WINNICK, MIGHT COME UP TO HIS MOTHER'S ON LABOR DAY WEEKEND. SO BE SURE AND DON'T LET THAT HAPPEN, I WANT HIM BROKE UP LIKE CORDWOOD, BUT ALIVE, JUST BARELY. THE SUBJECT I'M ABOUT, TO TALK ABOUT, I WANT HIM EXTERMINATED, OR CANCELLED OUT, HOWEVER YOU * * * WANT TO SAY IT. HIS NAME IS EDWARD J. KOSHEBA, HE'S A PROBATION OFFICER OUT OF HARRISBURG, PA. FOR THE FEDS. HE WORKS IN THE FEDERAL * * * * * * * * BUILDING AT 3RD & WALNUT * * * IN HARRISBURG, PA., * * * * * * * * * * * * * I REPEAT HE WORKS AT THE FEDERAL BUILDING AT 3RD & WALNUT IN HARRISBURG, PA., * * * * 10TH FLOOR, ROOM # 1036, BUSINESS PHONE IS * * * AREA CODE * * * (717) 782-2259. HIS RESIDENCE IS IN BOILING SPRINGS, PA., SOMETHING DOGWOOD TERRACE, BOILING SPRINGS, PA., IS A SUBURB OF HARRISBURG, PA., BUT THE BEST PART * * * * IS, HE HAS A LISTED PHONE NUMBER COMPLETE WITH HIS ADDRESS RIGHT OUT OF THE HARRISBURG, PA., PHONE BOOK. BE CAREFUL, BECAUSE HIS OFFICE, IS ON THE SAME FLOOR AS THE U.S. MARSHALL SERVICE. AS SOON AS YOU, CAN DO THIS, PIECE OF * * * * * * * * GARBAGE IS FINE WITH ME.

* * *

* * *

YOUR BROTHER'S FRIEND,

JIM.

App. at 356, Govt. Ex. 7. The solicitation of Kosheba's murder formed the basis of the indictment.

No fingerprints of any utility were found on either letter, nor was the typewriter which was found in McNeill's room during a search on August 31, 1988 positively identified as the one used to type the letters. McNeill introduced evidence at trial that inmates frequently transfer among themselves articles such as typewriters despite the existence of a sign-out policy, and also that inmates' rooms at...