U.S. v. Michaels

• Decision Date: 06 March 1984
• Docket Number: No. 82-2496,82-2496
• Citation: 726 F.2d 1307
• Parties: 14 Fed. R. Evid. Serv. 1853 UNITED STATES of America, Appellee, v. James Anthony MICHAELS, III, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1307

726 F.2d 1307

14 Fed. R. Evid. Serv. 1853

UNITED STATES of America, Appellee, v. James Anthony MICHAELS, III, Appellant.

No. 82-2496.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 12, 1983.

Decided Feb. 10, 1984.

Rehearing and Rehearing En Banc Denied March 6, 1984.

Thomas E. Dittmeier, U.S. Atty., St. Louis, Mo., Frederick R. Buckles, Asst. U.S. Atty., St. Louis, Mo., for appellee.

London, Greenberg & Pleban, Norman S. London, Lawrence J. Fleming, St. Louis, Mo., for appellant.

Before BRIGHT, ARNOLD and FAGG, Circuit Judges.

FAGG, Circuit Judge.

James Anthony Michaels appeals from his jury conviction for conspiracy to bomb an automobile in violation of 18 U.S.C. Sec. 844(i). Michaels initially challenges the existence of federal jurisdiction. He claims that the government has not sufficiently established that the vehicle bombed was used in an activity affecting interstate commerce. Michaels also argues that the trial court committed error in (1) refusing to enter a judgment of acquittal in that the evidence presented was insufficient to establish Michaels' participation in a conspiracy to bomb Paul Leisure's automobile; (2) admitting evidence seized from a trash bin, an apartment, and a storage locker; (3) admitting evidence of a prior car bombing in which Michaels' grandfather was killed; and (4) refusing to declare a mistrial when the government, during closing argument, referred to the bombing victim as a gangster. We find Michaels' contentions to be without merit, and thus affirm the judgment of the district court.

I. Jurisdiction

Michaels initially contends that federal jurisdiction is lacking under 18 U.S.C. Sec. 844(i). Section 844(i) provides:

(i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned * * *.

Michaels argues that the government did not sufficiently establish that the vehicle bombed, i.e., Leisure's privately-owned Cadillac automobile, was being used to conduct union business that affected interstate commerce. We cannot agree.

Although this court has not previously dealt with a sufficiency of the evidence question with respect to the commerce requirement of section 844(i), we are guided by the decisions of our sister circuits. Sister circuits have broadly construed the requirement that the "target property" be used in an activity affecting interstate commerce. United States v. Andrini, 685 F.2d 1094, 1095-96 (9th Cir.1982); United States v. Barton, 647 F.2d 224, 231-33 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981); United States v. Grossman 08 F.2d 534, 537 (4th Cir.1979); United States v. Schwanke, 598 F.2d 575, 577-78 (10th Cir.1979); United States v. Sweet, 548 F.2d 198, 200-02 (7th Cir.), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977). Following the directive of the statute's legislative history, the courts have readily applied section 844(i) to business-related property used in an activity affecting interstate commerce. H.R.Rep. No. 1549, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4046-47. We, too, broadly construe the language of section 844(i).

The government's uncontradicted evidence sufficiently demonstrates that the Cadillac automobile was used by Leisure to conduct union business. Irene Jones, an employee of Laborers International Union, Local No. 42, testified that Paul Leisure was employed by the union as a field organizer. In this capacity, Leisure traveled to various job sites for the purpose of enrolling new members in the union and collecting money owed the union by current members. The union paid Leisure a $200 per month allowance as reimbursement for using his personal automobile to conduct union business. Clearly, use of the automobile was an integral and necessary part of Leisure's job assignment and was not merely a means of traveling to and from work. Cf. United States v. Monholland, 607 F.2d 1311, 1314-16 (10th Cir.1979) (pickup truck used by state court judge to travel back and forth from home to court did not affect commerce).

Michaels argues that even assuming Leisure used a personally-owned automobile to conduct union business, there was no evidence to demonstrate that Leisure's Cadillac automobile was used for that purpose. Evidence obtained at the bomb scene, however, dictates a contrary conclusion. An agent of the Bureau of Alcohol, Tobacco and Firearms testified that upon his arrival at the bomb scene, he took custody of a briefcase that was lying to the left rear of Leisure's Cadillac. The briefcase contained numerous forms relating to the business of Laborers Local 42: a booklet containing membership application forms with Paul Leisure's name on the outside; a receipt book for recording collection of money from union members; dues check-off forms which authorize the union to deduct dues directly from a member's paycheck; and finally, numerous booklets containing agreements that Local 42 has with other organizations and associations.

The government's uncontradicted evidence also sufficiently demonstrates that the business Leisure accomplished by use of the Cadillac automobile affected interstate commerce. Laborers Local 42 has substantial dealings with the International Union office in Washington, D.C. Equipped with membership application forms, a cash receipt book, and dues check-off forms, Leisure used the Cadillac automobile to travel to job sites for the purpose of enrolling new members in the union and collecting money owed the union by its members. Laborers Local 42, in turn, provided the International Union with a listing of new members for initiation purposes and paid the International Union a monthly per capita tax on its members. While the effect on interstate commerce accomplished through Leisure's use of the automobile may seem slight, "his contribution, taken together with that of many others similarly situated, is far from trivial." Wickard v. Filburn, 317 U.S. 111, 127-28, 63 S.Ct. 82, 90, 87 L.Ed. 122 (1942). We believe that the government has sufficiently connected the automobile to an activity affecting interstate commerce, as required by section 844(i).

II. Sufficiency of the Evidence

Maintaining that the evidence presented at trial was not sufficient to establish his knowing participation in a conspiracy to bomb Paul Leisure's automobile, Michaels argues that the district court committed error in refusing to enter a judgment of acquittal. To convict a defendant of criminal conspiracy, the government is obligated to prove that "the individual entered an agreement with at least one other person, that the agreement had as its objective a violation of the law, and that one of those in agreement committed an act in furtherance of the objective." United States v. Evans, 697 F.2d 240, 244-45 (8th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 1779, 76 L.Ed.2d 352 (1983). The only element of a criminal conspiracy at issue on this appeal is Michaels' conspiratorial membership. "[T]he law in this Circuit is quite clear that an individual becomes a member of a conspiracy when the person knowingly contributes his or her efforts in furtherance of the objectives of the conspiracy ...." United States v. Burchinal, 657 F.2d 985, 990 (8th Cir.), cert. denied, 454 U.S. 1086, 102 S.Ct. 646, 70 L.Ed.2d 622 (1981). Further, "once the government has established the existence of a conspiracy, even slight evidence connecting a particular defendant to the conspiracy may be substantial and therefore sufficient proof of the defendant's involvement in the scheme." United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974).

In reviewing the sufficiency of the evidence underlying Michaels' conviction, we are obligated to view the evidence in the light most favorable to the jury verdict, accepting as established all reasonable inferences tending to support the verdict rendered. United States v. Jackson, 714 F.2d 809, 812 (8th Cir.1983); United States v. Pruitt, 702 F.2d 152, 155 (8th Cir.1983). Finally, circumstantial evidence is no less probative than direct evidence and a conviction based solely on circumstantial evidence is subject to the same principles of review. United States v. Jackson, 549 F.2d 517, 530 (8th Cir.1977).

Our review of the record reveals a substantial amount of circumstantial evidence from which a reasonable jury could have found beyond a reasonable doubt that Michaels knowingly participated in a conspiracy to bomb Leisure's automobile. United States v. Brim, 630 F.2d 1307, 1311 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981). In March of 1981, Milton Schepp gave Norman Steibel $3500 to purchase two cars. After registering the Chevrolet and Ford purchased by him in fictitious names, as directed by Schepp, Steibel turned the cars over to Schepp. In April 1981, Michaels contacted William Albright and requested that he rent an apartment for Michaels using a fictitious name. Michaels provided Albright $1100 cash to pay the rent six months in advance. Albright rented an apartment at 2706 Arnold Tenbrook in the name of Robert C. Simmons and then gave the apartment key to Michaels.

Testimony established that during the spring and summer of 1981, both cars purchased for Schepp, a car bearing Schepp's personalized license plate, and a car registered to John Michaels, the appellant's brother, were seen parked in front of the apartment rented for Michaels. David Valdez, who lived approximately a block away from the bomb scene, testified that on the morning of the bombing, he noticed two men sitting in a green Chevrolet in front of his home. Their behavior raised his suspicions and because he did not recognize the car...