U.S. v. Niece
| Decision Date | 19 October 1993 |
| Docket Number | No. 93-5011,93-5011 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Wilford H. NIECE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MILBURN and NELSON, Circuit Judges, and GILMORE, Senior District Judge. *
A jury found the appellant in this case guilty of having violated 18 U.S.C. Sec. 2423, a statute that prohibits the transportation of minors in interstate commerce for illicit sexual purposes. Pointing to alleged evidentiary errors at trial and alleged mistakes in the application of the sentencing guidelines, the appellant challenges both his conviction and his sentence. We shall affirm the conviction. Concluding that the appellant's offense level was miscalculated, however, we shall remand the case for resentencing.
A two-count indictment was returned against the appellant, Wilford H. Niece, in May of 1992. The first count charged that between May 26 and July 25, 1991, Niece violated 18 U.S.C. Sec. 2423 by transporting a 14-year-old girl from Kentucky to Virginia with the intent that she engage in sexual activity in violation of Sec. 18.2-63 of the Virginia Code. 1 The second count charged him with having violated 18 U.S.C. Sec. 924(c) by carrying or using a handgun during and in relation to a crime of violence (i.e., the crime charged in the first count). Mr. Niece pleaded not guilty to both charges.
When the case was submitted to the jury following trial, Mr. Niece was convicted on the first count and acquitted on the second. Applying the version of the United States Sentencing Guidelines that became effective on November 1, 1990, the district court sentenced him to imprisonment for six years and imposed a fine of $75,000.
Both defendant Niece and his young victim lived in Letcher County, Kentucky, which borders on the Commonwealth of Virginia. Mr. Niece was a half-owner of the "Poverty House" restaurant, located in Wise County, Virginia, a few miles over the border. He and his family and the girl and her family attended a church situated on the state line.
The families became acquainted through their church activities, and Niece's stepdaughter befriended the victim and her sister. Beginning in 1990, the two girls (then 14 and 15 years old respectively) were routinely invited to visit the Niece home on Sundays after church. It seems to have been an attractive place; Mr. Niece, who had business interests that included coal mining and trucking, owned a large house with a swimming pool, a tennis court, an exercise room, a collection of antique cars, and a stable of riding horses.
The victim testified at trial that on November 4, 1990, during one of her Sunday visits, she began a sexual relationship with Mr. Niece. (Mr. Niece was then about 50 years old.) The following summer, while the victim was out of school for vacation, she and Mr. Niece began meeting twice a week. Niece would pick her up in a pickup truck and drive her across the state line to the Poverty House. There, in an apartment attached to the restaurant, they would engage in sexual intercourse.
As far as the period covered by the indictment is concerned, it is clear that the relationship was consensual in nature. It was generally the girl who called Mr. Niece to arrange their meetings, and she knew the purpose of the Poverty House visits in advance. She did not resist going there. She testified further that Niece said he loved her and promised to give her a house and a Mercedes automobile when she turned 18.
There was evidence that Mr. Niece carried a pistol in the cab of his pickup truck. The prosecution did not contend that the victim was threatened with the weapon, but Niece did once tell her, according to her testimony, that the gun was to "take care of ... big-mouthed women."
The victim's mother learned of the trysts in mid-July of 1991. The trips to Virginia ended at that point, and the FBI was informed of the case. There is evidence that when Niece learned that the FBI had been called, he asked his stepdaughter and another friend of hers not to cooperate with the authorities. He told the stepdaughter that he would be angry if she got him in trouble, but that if she did not cooperate with the FBI she could "have anything [she] wanted." He asked the friend not to tell the grand jury what she had told the FBI. If she helped him, Niece told her, "then maybe later on down the road I can help you or I can do a favor for you."
At trial the government introduced tape recordings of telephone conversations between Mr. Niece and the victim. In these recordings, made by the victim in 1992, Niece appeared to acknowledge the sexual misconduct and implored the girl not to cooperate with the FBI investigation.
The United States gave notice prior to trial that it intended to offer "other bad act" evidence under Federal Rule of Evidence 404(b). 2 Mr. Niece moved that such evidence be suppressed. After in camera consideration of the proposed evidence, the trial court denied the motion: "The alleged prior bad acts are relevant as to the defendant's modus operandi," the court wrote, "and the probative weight of such evidence would outweigh the prejudicial effect to the defendant."
At trial, over a renewed objection by Mr. Niece, the government called as witnesses the victim's sister and a young female to whom we shall refer as "L.A." The latter testified that when she was "anywhere from 15 to 17" years old, the defendant told her that "he had heard that [she] was good in bed" and offered to pay her $500 if she would meet him at a motel in Virginia. The victim's sister testified that Niece made explicit sexual advances toward her when she was fifteen years old, inviting her to have sex with him at the Poverty House and elsewhere. The sister testified that Niece offered in return to let her drive his Corvette whenever she wanted to, once she had her driver's license.
At the time the sister's testimony was given, the trial judge admonished the jury as follows:
The court gave no similar admonition in connection with L.A.'s testimony. In its instructions to the jury at the close of the trial, however, the court gave this charge:
Following his conviction on the charge of having violated Sec. 2423, Mr. Niece was sentenced under the version of the sentencing guidelines that became effective on November 1, 1990. The court determined that use of a later edition would result in a sentence greater than that allowable at the time of the offense, in violation of the Constitution's ex post facto clause. U.S. Const. Art. I, Sec. 9.
Applying Sec. 2G1.2 of the guidelines, the court fixed Niece's base offense level at 16. The court then added two levels under U.S.S.G. Sec. 2G1.2(b)(3) because the victim was twelve to fifteen years old. An additional increase of four levels was imposed under Sec. 2G1.2(b)(1), the court having determined the offense involved the use of "economic coercion." Two further increases of two levels each were imposed, one under Sec. 3A1.1 (), and the other under Sec. 3C1.1 (). The total offense level thus came to 26. Mr. Niece had no prior criminal history of any significance, and the absence of such a history resulted in his being placed in Criminal History Category I.
The sentence range prescribed by the guidelines for these variables was imprisonment for a period of 63-78 months. The court imposed a sentence of 72 months and a fine of $75,000.
Mr. Niece contends first that the "other act" evidence presented through the testimony of L.A. and the victim's sister was inadmissible under Fed.R.Evid. 404(b). Because this evidence was relevant to the issue of the defendant's intent, however, and because the trial court was entitled to conclude that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, see Fed.R.Evid. 403, we find no reversible error.
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...v. Gawthrop, 310 F.3d 405, 410 (6th Cir. 2002) (grandfather-granddaughter relationship); see also United States v. Niece, 9 F.3d 110 (table), 1993 WL 424960, at *9 (6th Cir. Oct. 19, 1993) ("father figure-daughter" relationship). Broadening that range to include the traditional doctor-patie......