U.S. v. Reed, 83-4240

• Decision Date: 12 September 1983
• Docket Number: No. 83-4240,83-4240
• Citation: 715 F.2d 870
• Parties: 14 Fed. R. Evid. Serv. 95 UNITED STATES of America, Plaintiff-Appellee, v. Edward Murray REED and Pamela Marie Burton, Defendants-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 870

715 F.2d 870

14 Fed. R. Evid. Serv. 95

UNITED STATES of America, Plaintiff-Appellee, v. Edward Murray REED and Pamela Marie Burton, Defendants-Appellants.

No. 83-4240

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 1983.

B. Dexter Ryland, Alexandria, La., for Edward Reed.

Camille F. Gravel, Jr., Alexandria, La., for Pamela Burton.

D.H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Louisiana.

Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.

PER CURIAM:

Appellants Edward Murray Reed ("Ed Reed") and Pamela Burton ("Burton") (collectively "defendants") appeal from their jury convictions of conspiracy to commit extortion and interstate travel to commit extortion. Ed Reed alone appeals his conviction of use of a telephone to commit extortion. ¹ Edward Hughes Reed ("Chief Reed"), Ed Reed's father, was acquitted on all three counts. The defendants claim that the trial court erred in not granting their motion for a judgment of acquittal or, in the alternative, a new trial. For the reasons set forth below, we affirm.

I. FACTUAL BACKGROUND.

This case arose as a result of the alleged rape of Burton by David Wolfe, Jr. ("Wolfe"), the extortion victim. On August 24, 1982, while hitchhiking from Vicksburg, Mississippi to Houston, Texas, the defendants accepted a ride to Oakdale, Louisiana with Wolfe and several others. The defendants are white; Wolfe is black. The group stopped in Oakdale to attend a party being given by Green, the vehicle's owner. Wolfe testified that at the party, he offered Burton one hundred dollars to engage in sexual intercourse with him, and that Burton agreed and accepted the money. The two left in Green's van, telling the others that they were going to the store for more beer. Burton asserts that she left with Wolfe solely to keep him company while he got the beer. Wolfe drove to a secluded spot and he and Burton engaged in sexual relations. Burton claims that she was forced to do so by Wolfe's threats to kill her if she did not cooperate, whereas Wolfe claims that the act was consensual and, as recounted above, that he paid Burton for it. In either case, the two then returned to the party. Shortly thereafter, the defendants said they wanted to leave. After giving Ed Reed his telephone number, Wolfe drove them to the highway and dropped them off. At that point, Burton told Ed Reed that Wolfe had raped her. The defendants flagged down a passing police car and reported the alleged rape in Oakdale. Wolfe was arrested that evening and was released on bail. He denied that he had raped Burton.

Two days later, on August 26, 1982, Wolfe received a telephone call from Chief Reed, who was the Chief Deputy Sheriff in Vicksburg, Mississippi. Chief Reed spoke of Wolfe's having raped Burton, and told Wolfe that Wolfe was in a lot of trouble and needed both a lawyer and "big money." Chief Reed said that he knew Wolfe had been in the penitentiary and that he was going to have the Governor of Louisiana revoke Wolfe's pardon. ² A few minutes later, Ed Reed called Wolfe. Wolfe contends that Ed Reed told him that Burton's "two big bad brothers in California" would come to Oakdale and "get" Wolfe, but that Ed Reed could probably help Wolfe if Wolfe could come up with some money. After this conversation, Wolfe called the Oakdale Police Department, which notified the FBI. Wolfe recorded his end of Ed Reed's next telephone call in the presence of FBI agents. There was then a series of telephone calls between the Reeds and Wolfe, two more of which were partially recorded. Throughout these calls, Wolfe asserted that he had not raped Burton and that the Reeds knew it. Eventually it was agreed that Wolfe would pay Burton and the Reeds $1500 in exchange for the rape charge being dropped.

Pursuant to a plan coordinated with the FBI agents, the next morning Wolfe placed $1500 in one-hundred-dollar bills in a large envelope. Wolfe was wired for sound. At the site of delivery, to which the defendants and Chief Reed had driven from Mississippi in the latter's police car, Wolfe handed the envelope to Ed Reed. At Wolfe's request, Ed Reed wrote on the envelope, "We Pam Burton will drop charges on David Wolfe Jr. Signed by Ed Reed." Wolfe then spoke to Chief Reed, who assured him that the charges would be dropped. After the defendants and Chief Reed left the scene, they were stopped by the FBI and arrested, and Burton relinquished the $1500.

After being arrested, both defendants told the FBI agents that they had traveled from Mississippi to Louisiana to obtain money from Wolfe in return for dropping Burton's rape complaint, and that the money was needed to pay off some bad checks that Ed Reed had written. Burton stated that at the payoff site she had told the Reeds that if Wolfe didn't have the money, she would continue to press charges.

II. SUFFICIENCY OF THE EVIDENCE.

The defendants contend that the trial court should have granted their motion for acquittal or, in the alternative, their motion for a new trial, because there was insufficient evidence to support their convictions. In responding to this argument, we note initially that the standard with regard to the sufficiency of evidence on a motion of acquittal is both clear and well established. As articulated by the Supreme Court in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the formulation commonly applied holds: "It is not for [an appellate court] to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Id. at 80, 62 S.Ct. at 469 (emphasis added). See also Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978) ("appellate reversal on grounds of insufficient evidence ... will be confined to cases where the prosecution's failure is clear").

This circuit's standard in reviewing sufficiency of evidence claims was recently articulated as follows:

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.

United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, --- U.S. ----, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). The scope of review is the same whether the evidence is direct or circumstantial. See id. n. 3.

We think it clear that this case did not involve any prosecutorial failure to present substantial evidence of a conspiracy between the defendants. In United States v. Arredondo-Morales, 624 F.2d 681 (5th Cir.1980), we held:

In order to convict a defendant of conspiracy, the existence of a conspiracy must be established with substantial evidence showing the presence of an agreement between two or more persons to commit a crime and an overt act in furtherance of the agreement by one of the conspirators[,] ... and with substantial evidence that each conspirator knew of, intended to join, and participated in the conspiracy.

Id. at 683 (citations omitted).

Under Louisiana law, extortion consists of:

[T]he communication of threats to another with the intention thereby to obtain anything of value .... The following kinds of threats shall be sufficient to constitute extortion:

(1) A threat to do any unlawful injury to the person or property of the individual threatened or of any member of his family or of any other person held dear to him;

(2) A threat to accuse the individual threatened or any member of his family or any other person held dear to him of any crime.

* * *

* * *

La.Rev.Stat.Ann. § 14:66 (West 1974). According to this standard, there was, at the least, substantial evidence that the defendants agreed to extort $1500 from Wolfe. The jury was entitled to believe Wolfe's testimony that Ed Reed threatened vengeance by Burton's "big bad brothers." That Burton made no direct threats does not negate her culpability for those made by Ed Reed, since the act of one conspirator in furtherance of the conspiracy may be imputed to all co-conspirators. Furthermore, Burton herself stated that, had Wolfe not had the money on the morning of the payoff, she would have continued to press the rape charge. It is undisputed that Ed Reed's threats were communicated to Wolfe over the telephone from Mississippi, and that the defendants planned to and did drive from Mississippi to Louisiana to collect the money.

The existence of a conspiracy does not have to be shown by direct evidence, but can be inferred from the circumstances. See Glasser, supra, 315 U.S. at 80, 62 S.Ct. at 469; Bell, supra; United States v. Vergara, 687 F.2d 57, 61 (5th Cir.1982); cf. United States v. Barrera, 547 F.2d 1250, 1255 (5th Cir.1977) (no intrinsic difference between direct and circumstantial evidence). The agreement need not be explicit. It is sufficient if there is concerted action, and if the conspirators work together with a common "design, purpose and understanding." American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946). The jury is entitled to infer a defendant's state of mind from such activities. Although the defendants contend that they were pursuing what they believed to be a legitimate civil settlement of Burton's claim against Wolfe, the jury was entitled to credit Wolfe's denial of the rape charge. It could then infer that Burton falsely accused Wolfe in order to obtain money to pay off the bad checks Ed Reed had written. In other words, there was substantial evidence presented from which the jury could infer that the defendants possessed the requisite intent.

In light of the...