U.S. v. Meling

• Citation: 47 F.3d 1546
• Decision Date: 22 February 1995
• Docket Number: No. 93-30238,93-30238
• Parties: 41 Fed. R. Evid. Serv. 593 UNITED STATES of America, Plaintiff-Appellee, v. Joseph MELING, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1546

47 F.3d 1546

41 Fed. R. Evid. Serv. 593

UNITED STATES of America, Plaintiff-Appellee, v. Joseph MELING, Defendant-Appellant.

No. 93-30238.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 3, 1994.

Decided Feb. 22, 1995.

Cyrus R. Vance, Jr., Culp, Guterson & Grader, Seattle, WA, for defendant-appellant.

Joanne Y. Maida, Asst. U.S. Atty., Seattle, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, KOZINSKI and FERNANDEZ, Circuit Judges.

KOZINSKI, Circuit Judge.

In 1990, Joseph Meling took out several hundred thousand dollars in life insurance on his wife; in early 1991, he added accidental death benefits. All told, Meling stood to collect $700,000 if his wife happened to die in an accident. Meling was not just being prudent; he was planning for the future.

Meling, however, wasn't satisfied to leave such important matters to chance: The day after the coverage became effective, he fed his wife a capsule of cyanide-laced Sudafed. Miraculously, she survived, but Meling's amateur pharmacology continued. Worried he might be suspected in the poisoning, Meling concocted a scheme to divert official attention elsewhere. What better place to hide a tree than in the forest? So Meling laced five packages of Sudafed with lethal amounts of cyanide and planted them on drug store shelves, killing two people before Burroughs-Wellcome could institute a national recall of its product.

This macabre scheme wasn't Meling's only attempt to divert suspicion. First, he played the dutifully distraught husband: When his wife collapsed from the poison, Meling phoned 911 and feigned hysteria, then melodramatically vowed to the paramedic who arrived on the scene that he would beat the ambulance to the hospital. Then he bluffed: While his wife lay hospitalized, he called the police into her room and declared in front of her family that he expected to be the prime suspect because of the insurance he had purchased. And finally, he lied: He claimed that this suspicion would prove unwarranted because the policies he bought did not cover death by poisoning.

Though less twisted than poisoning innocent people to divert suspicion, these ruses likewise failed. Meling's performance as the distraught husband was wooden, and both the 911 operator and the paramedics suspected Meling was feigning grief. Meling also raised eyebrows among the hospital staff with his odd behavior: He declined what might have been his last opportunity to see his wife alive, and stunned the doctors treating his wife by suggesting that they should look for signs of cyanide poisoning. Until that point, the doctors had been flummoxed by his wife's symptoms.

The FBI easily verified that the policies Meling had purchased did not preclude coverage for poisoning--a fact Meling no doubt knew, not only because he was an insurance salesman, but also because he had asked a colleague if an accidental death policy would cover death by poisoning. Interviewing Meling's wife after her recovery, the FBI discovered other disturbing evidence of Meling's guilt: Meling behaved bizarrely in the months leading up to the poisoning, and coaxed his wife into taking the laced Sudafed by complaining that she was congested and snored at night; before being poisoned, Meling's wife had, in fact, been perfectly healthy.

Meling was thus the central focus of the investigation from the outset. He had the motive and the opportunity to poison his wife, and he had the motive and opportunity to commit the other tamperings. But Meling stymied the FBI in its efforts to build a case. He instructed his family not to cooperate in the investigation and enforced that instruction with threats. And he wheedled his way back into his wife's affections, cajoling her into recanting her prior statements about his behavior and encouraging her to withhold information from the investigating authorities.

Stonewalled in its pursuit of more rudimentary methods of investigation, the FBI obtained authorization for a wiretap on the Melings' phone. When the original wiretap expired, the FBI sought and obtained an extension. And when it became clear that the Melings suspected the phone was tapped, the FBI obtained an order permitting it to install listening devices in the walls of the Melings' home. This surveillance did not lead to the admission of guilt that the FBI coveted, but it did lead to evidence that was instrumental in securing Meling's conviction, including the discovery of the store where Meling had bought the cyanide.

At trial, the government presented circumstantial evidence of Meling's guilt, including his feigned grief, lack of emotion in the face of his wife's suffering, attempts to obstruct the investigation, and motive and opportunity to commit the crime. The government also presented two handwriting experts who testified that Meling had forged a signature on a poison register, linking him to the purchase of a pound of sodium cyanide scant weeks before the poisonings. Meling was convicted of six counts of product tampering: One count for causing serious bodily injury to his wife, 18 U.S.C. Sec. 1365(a)(3); two counts for causing the deaths, id. Sec. 1365(a)(2); and three counts for planting the packages of laced Sudafed that were recovered unopened, id. Sec. 1365(a)(4). The district court sentenced Meling to life in prison.

On appeal, Meling raises four issues. He claims that the government obtained authorization for the wiretaps without establishing probable cause; that the district court improperly denied him a Franks hearing to challenge the veracity of the information provided in the wiretap applications; that multiple trial errors and prosecutorial misconduct deprived him of a fair trial; and that his life sentence is excessive.

A. Probable Cause

A district judge authorizing a wiretap must enter several statutorily-required findings of probable cause. The judge must find probable cause to believe (1) that an individual is committing, has committed, or is about to commit specified offenses, including product tampering and obstruction of justice, 18 U.S.C. Sec. 2518(3)(a); (2) that communications relevant to that offense will be intercepted through the wiretap, id. Sec. 2518(3)(b); and (3) that the individual who is the focus of the wiretap investigation will use the tapped phone, id. Sec. 2518(3)(d). ¹ Looking only to the four corners of the wiretap application, we will uphold the wiretap if there is a "substantial basis" for these findings of probable cause. United States v. Stanert, 762 F.2d 775, 778-79 (9th Cir.), amended, 769 F.2d 1410 (9th Cir.1985); United States v. Brown, 761 F.2d 1272, 1275 (9th Cir.1985); see also Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983).

The FBI supported the first wiretap application with the affidavit of one of its agents. This affidavit recounted the substantial circumstantial evidence of Meling's guilt and his attempts to obstruct the investigation: Meling obtained $700,000 in life insurance on his wife shortly before the poisoning; he behaved bizarrely in coaxing his wife to take the laced Sudafed; and, after the poisoning, he ineptly feigned grief, downplayed to the police the extent of insurance coverage he had obtained, and intimidated his family into withholding information.

The wiretap affidavit also provided information from and about a cooperating witness, Keith Meling. Keith is defendant Joseph Meling's uncle, and he came forward despite threats of retaliation from his family. Among other things, he told the FBI that Joseph had spoken to him on several occasions about wanting to get rid of his wife and described a recent telephone conversation in which Joseph admitted the poisonings. The affidavit also explained that Joseph had moved into his parents' home--a fact the FBI had independently learned--and was using their phone, which then became the target of the wiretap.

The affidavit supporting the original application therefore addressed each of the three statutory requirements: It provided evidence that Joseph Meling had committed the poisoning and was obstructing the investigation; it indicated that Meling had used the phone to talk about these crimes with his uncle; and it showed that Meling had moved into his parents' home and was using the target telephone. That information gave the district judge reviewing the wiretap application "a substantial basis for concluding that the affidavit in support of the [wiretap application] established probable cause." United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir.1986).

The two applications for extensions of the wiretap also provided a substantial basis for finding probable cause. These applications incorporated the first one, and supplemented the original showing of probable cause with transcripts of seized conversations. These conversations reveal Meling's efforts to worm his way back into his wife's good graces and to convince her not to cooperate in the FBI's investigation. Coupled with the original application, this information provided a substantial basis for the reviewing judge's finding of probable cause.

Meling argues, however, that by the time of the second application the FBI no longer had probable cause to believe that a wiretap would seize relevant conversations, because on several occasions Meling and his family made comments directed at the FBI agents they presumed were eavesdropping. But the fact that the Melings might have suspected the phone was tapped does not mean the wiretap was certain to fail. Suspicion is not the same as certainty; individuals who merely suspect they are under surveillance may get careless and utter incriminating statements. So it was here: Even as they were voicing suspicion that the phones might be tapped, the Melings were engaging in conversations that were relevant to the investigation.

B. Franks Issues...