U.S. v. Richeson

• Decision Date: 22 July 2003
• Docket Number: No. 02-3896.,02-3896.
• Citation: 338 F.3d 653
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter RICHESON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

338 F.3d 653

UNITED STATES of America, Plaintiff-Appellee, v. Walter RICHESON, Jr., Defendant-Appellant.

No. 02-3896.

United States Court of Appeals, Seventh Circuit.

Argued May 30, 2003.

Decided July 22, 2003.

Andrew B. Baker, Jr., Philip Benson (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

H. Jay Stevens (argued), Indiana Federal Community Defenders, Inc., South Bend, IN, for Defendant-Appellant.

Before FLAUM, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

FLAUM, Chief Judge.

A jury convicted Walter Richeson, Jr., of four counts of conspiring to use interstate commerce in the commission of a murder for hire, in violation of 18 U.S.C. § 1958(a). Richeson appeals his conviction on three grounds, arguing first that the evidence was insufficient to prove he provided any consideration for the alleged murder-for-hire, second that the evidence failed to establish he used a facility in interstate commerce when he made only intrastate phone calls to plan the murders, and third that the district court abused its discretion by admitting unfairly prejudicial evidence of his plans to murder the state prosecutor, intimidate a juror, and bribe the trial judge. We affirm.

I. BACKGROUND

In the fall of 1999, Richeson was arrested and charged in Indiana state court with the murder of Brant Martin. Eyewitness Bradley Koonce told state investigators that Richeson killed Martin, and Steve Mucha informed investigators that Richeson confessed to him that he had killed Martin. Mucha was released after giving his statement, but Koonce was taken into custody on unrelated charges and placed in Lake County Jail. Richeson knew that the state's case against him was strong, and decided that the best way to defeat the charges was to have witnesses Koonce and Mucha killed. Since Koonce was in custody, however, Richeson thought killing him was not feasible; instead, Richeson devised a plan to kidnap Koonce's parents (his mother and step-father) and use threats of death to them as a way to force Koonce to recant. Even after Koonce recanted, however, Richeson still intended to kill Koonce's parents.

Richeson next conspired with his wife Jennifer and fellow inmates Daniel Wolfe and Curtis Jones to commit the murders. Richeson wrote letters to Jennifer outlining his plans and asking her to contact a man named "Dice" to carry out the actual kidnaping and killings. In one letter, which Richeson sent to Jennifer with instructions that it be forwarded to Dice, Richeson begged Dice to kill Koonce and Mucha and told Dice he would make it up to him anyway he wanted if Dice did what Richeson asked him to do. Additionally, Richeson called Jennifer numerous times from jail asking her to coordinate his kidnaping and murder plans.

Richeson also sought help from Wolfe and Jones to carry out his plan. The three inmates agreed that the first one to "bond out" would help the others get out; Jones also agreed that if he bonded out he would help find weapons to use in the plan to murder Mucha and Koonce's parents. At that time Richeson offered to pay Jones between $700-$1000 if he could get a gun for the murder, but Jones testified that he told Richeson he wasn't worried about the money. Wolfe bonded out first in August 2000, without help from Jones or Richeson, and once out of jail he avoided contact with Richeson. Jones made bond in November 2000, again without help from Wolfe or Richeson; shortly before Jones left the jail, Richeson asked him if he was still in on the plan. Jones pointed out that Richeson had not helped him make bond, as he had promised to do, but added that he would nevertheless see what he could do to help. Richeson then sent Jones two letters in December of 2000, imploring him to help him kill Mucha and kidnap Koonce's parents; the second of the two letters was written in a crude code which was supposed to be read using the "decoder" contained in the first letter.

Unknown to either Jones or Richeson, Wolfe had informed an agent from the Bureau of Alcohol, Tobacco, and Firearms ("ATF") of Richeson's plan to murder Mucha and Koonce's parents while Wolfe was still incarcerated. Although Wolfe had avoided contact with Richeson after his release from jail in August of 2000, he received a call from an unidentified person in December of 2000 telling him that he had better start taking Richeson's calls. Later in December, Wolfe accepted a collect call from Richeson, who wanted to tell Wolfe how to carry out the kidnaping of Koonce's parents. Immediately after this call, Wolfe contacted ATF and told them that Richeson's plot to kill and kidnap witnesses was still active and seemingly genuine; ATF then began taping Richeson's calls from jail to Wolfe, Jennifer, and Jones.

Wolfe next introduced undercover ATF agent Joe Molina to Jennifer and Jones, telling them that Molina was his partner who would help carry out Richeson's plans. Several phone conversations between Wolfe, Molina, Jennifer, Jones, and Richeson were recorded during the month of January 2001, and these conversations revealed that Richeson was planning to enlist the help of Jones and others to kill and intimidate witnesses who would testify against him at his upcoming trial in February. In addition to Mucha and Koonce's parents, Richeson plotted to murder other witnesses (the O'Neal twins and Bob Holota) and the state prosecutor; he also planned to bribe the state trial judge and intimidate a juror by threatening his or her family.

Neither Richeson nor the government disputes that Richeson conspired and planned to commit the murders, but Richeson insists that the government never proved he conspired and planned to commit a murder-for-hire. Richeson claims that none of his phone conversations with Jones, Molina, Wolfe, or Jennifer in which he discussed obtaining a murder weapon constituted "consideration for a promise or agreement to pay, anything of pecuniary value" as required by the murder-for-hire statute. 18 U.S.C. § 1958(a). In contrast, the government maintains that the conversations between Richeson and his coconspirators unquestionably reveal Richeson's intent to reimburse them for their purchase of a murder weapon and to involve them in future crimes that would yield money ($100,000-$200,000 by Richeson's own account) for them to share. Moreover, the government contends that Richeson promised Molina $500 to buy a gun for himself in exchange for his help with the murders.

At trial the government introduced evidence, over Richeson's Fed.R.Evid. 403 objection, that Richeson had planned to kill the state prosecutor and steal his case file, bribe the judge, and identify and intimidate a vulnerable juror in order to avoid a conviction for murdering Brant Martin. Richeson argues this evidence should have been kept out because it was unfairly prejudicial, in that its sole purpose was to inflame the jury, and was of little probative value, given the admission of so much other evidence of Richeson's plan to murder Mucha and Koonce's parents. The district court allowed the contested evidence to be introduced because it was highly relevant to the government's case against Richeson, and denied Richeson's motion for a mistrial based on the admission of the evidence.

The government presented its case against Richeson over four trial days; at the close of evidence on the fourth day, Richeson moved for judgment of acquittal, claiming the government had not met its burden of proof regarding the consideration element of the murder-for-hire statute, nor had it proven the interstate commerce element with respect to the intrastate phone calls charged in Counts II and IV. The court denied his motion, and Richeson rested without presenting any evidence. Richeson was found guilty and sentenced to a term of 364 months federal imprisonment (91 months for each of the 4 counts running consecutively), which was tacked onto his Indiana state court sentence for the murder of Brant Martin.

II. Discussion

A. Consideration Element

The federal murder-for-hire statute requires the government to prove that the accused intended for a murder to be committed "as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value." 18 U.S.C. § 1958(a). The phrase "anything of pecuniary value" is defined in the statute as "anything of value in the form of money, a negotiable instrument, a commercial interest, or anything else the primary significance of which is economic advantage." § 1958(b)(1). Not only money, but drugs, insurance policies, and real estate can constitute consideration for the purpose of satisfying this element. See, e.g., United States v. Scott, 145 F.3d 878, 884 (7th Cir.1998) (cash payments of $5,000 and $75,000); United States v. Washington, 318 F.3d 845, 854 (8th Cir.2003) (payment of 5 ounces of heroin); United States v. Hernandez, 141 F.3d 1042, 1057 (11th Cir.1998) (promise to profit from insurance proceeds). Here, the government charged Richeson with promising to pay something of pecuniary value, namely money and guns, in return for the murders of Mucha and Koonce's parents.

Richeson attacks the sufficiency of the evidence against him on two fronts, claiming first that the evidence failed to show that he paid or promised to pay anyone anything of value to commit the murders; and second, even assuming he made such a promise, the evidence failed to establish that the charged mailings were made in connection with a murder-for-hire since they preceded any discussion of compensation for the murders. We review a challenge to the sufficiency of the evidence in the light most favorable to the prosecution, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and will reverse a jury's verdict of conviction only if "there is no evidence from which a jury could convict." United States v. Hill, 187 F.3d 698, 700 (7th Cir.1999). Under such a deferential standard...