U.S. v. Russell

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation971 F.2d 1098
Docket NumberNo. 91-5110,91-5110
Parties36 Fed. R. Evid. Serv. 642 UNITED STATES of America, Plaintiff-Appellee, v. Robert Peter RUSSELL, Defendant-Appellant.
Decision Date12 August 1992

Frederick Fanelli, Riley & Fanelli, P.C., Pottsville, Pa., Drewry B. Hutcheson, Jr., Alexandria, Va., for defendant-appellant.

Lawrence Joseph Leiser, Asst. U.S. Atty., Office of the U.S. Atty., Alexandria, Va., argued (Richard Cullen, U.S. Atty., Michael E. Rich, Sp. Asst. U.S. Atty.), Alexandria, Va., for plaintiff-appellee.

Before RUSSELL and LUTTIG, Circuit Judges, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.


LUTTIG, Circuit Judge:

Appellant Robert Peter Russell was convicted of the federal offense of first-degree murder for killing his wife, an officer in the United States Marine Corps. The evidence supporting Russell's conviction was all circumstantial. His wife's body has never been found, there were no witnesses to the crime, and the murder weapon has not been located.

Russell's principal claim on appeal is that there was insufficient evidence to support his conviction. In addition, Russell challenges various evidentiary rulings by the district court; two jury instructions; and the court's refusal to give two other instructions. He also alleges that the Government failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We find no merit in any of these claims and therefore affirm.


On March 4, 1989, Shirley Gibbs Russell, a captain in the United States Marine Corps, disappeared from her married officers' quarters on the Quantico, Virginia, military base. Her husband, appellant Robert Peter Russell, was subsequently charged with her murder. See 18 U.S.C. § 1111(b) (criminalizing murder "[w]ithin the special maritime and territorial jurisdiction of the United States"). The Government's case against Russell comprised only circumstantial evidence. Neither the victim's body nor a murder weapon was ever recovered, and there were no witnesses to the crime. The Government's theory was that Russell, a former Marine Corps officer who had recently been discharged for disciplinary reasons, shot his wife behind the ear with a .25 caliber pistol while the two were in a storage shed adjacent to their quarters, and then dumped her body into a

mine shaft in Pennsylvania. The jury apparently accepted this theory; it returned a guilty verdict on May 3, 1991. Russell was sentenced to life imprisonment on August 2, 1991

The chronology of events leading to Russell's arrest is as follows. Russell met Shirley Gibbs in August 1985, while the two were stationed at the Parris Island, South Carolina, Marine Corps Base. At the time, Russell was a Marine Corps captain, and was married to his first wife, Pamela Russell. Three months after his divorce from Pamela Russell in April 1987, Russell was transferred to the Gulfport, Mississippi, Naval Base. While stationed at Gulfport, Russell continued his relationship with Gibbs, but also became romantically involved with a number of other women.

Two months after his arrival in Gulfport, Russell married Gibbs. 1 Their marriage was not a happy one, and there was testimony at trial that Russell was abusive 2 and unfaithful. Gibbs consulted with a marriage counselor on at least eight different occasions during her brief marriage to Russell.

In July 1988, Gibbs was transferred to Quantico. Two months later, Russell was discharged from the Marine Corps under "other than honorable" conditions, J.A. at 206, because of unauthorized periods of absence, unauthorized use of Government telephones, and fraudulent claims against the Government. 3 At the time Russell's discharge became effective, he was living with Gibbs in Quantico.

Immediately following his discharge, Russell took a job as a special education instructor at a local high school, and soon thereafter began a romantic relationship with Sandy Flynt, an employee of the school. Russell and Gibbs eventually decided to separate, and on February 28, 1989, Gibbs moved into the bachelor officers' quarters at Quantico. Two days later, on March 2, Russell moved into Flynt's Dale City residence, which she shared with her father-in-law. That same day, Russell purchased a Raven .25 caliber semi-automatic pistol. 4

On Friday, March 3, Gibbs picked up the final version of a marital settlement agreement memorializing her separation from Russell and dividing their joint property. 5 Gibbs also made a down payment on a condominium that day, in anticipation of her life apart from Russell.

Because Russell and Gibbs had vacated their married officers' quarters, the quarters had to be inspected. Gibbs arranged to meet Russell at their quarters on the morning of Saturday, March 4, in order to prepare for the inspection, which was scheduled for Monday, March 6. Gibbs had asked her sister, Doreather Sogren, to drive up from Virginia Beach to be with her while she was preparing to move out of

the quarters, and Sogren had originally planned to be with Gibbs on that day. A request by Sogren's employer that she work Saturday morning, however, prevented her from making the trip

March 4 was a cold and rainy day. Just before 9 a.m., Sogren received a telephone call from Russell, who identified himself as Lieutenant Colonel Hodges, Gibbs' commanding officer. Russell asked Sogren if she knew where Gibbs was. Sogren immediately recognized Russell's voice and said, "Bob, I know this is you. Why are you playing games with me? ... [Y]ou should know [where Gibbs is] because you are right there in Quantico with her...." Id. at 637. 6 Later that morning, at approximately 11 a.m., Russell left Sandy Flynt's residence after telling Flynt that he was meeting Gibbs at their married officers' quarters. Rhonda McCumber, who lived in the quarters adjacent to the Russells', testified that she saw Gibbs outside their quarters at about noon.

Gibbs had planned to have lunch with Captain Patrice Gayl on that Saturday after meeting with Russell, and she had agreed to meet Gayl at Gibbs' bachelor quarters. At approximately 1:20 p.m., Gayl went to meet Gibbs. When Gayl discovered that Gibbs was not at her bachelor quarters, Gayl drove to the Russells' married quarters. When she arrived, Russell told Gayl that Gibbs had walked to the Marine Corps Exchange to purchase paint. Gayl testified that she was surprised by this explanation, because Gibbs rarely missed an appointment. 7 Gayl also testified that Russell was flushed and sweating profusely when she saw him. 8

After Gayl left the Russells' quarters, Chief Warrant Officer Kenneth Shilko invited Russell into his quarters, where the two men talked and drank coffee for more than an hour. Shilko testified that he was doing most of the talking during Russell's visit, and that Russell seemed distracted. Shilko also testified that Russell was concentrating on a clock that hung on a wall in Shilko's quarters.

Following his visit with Shilko, Russell returned to Flynt's residence and showered. By then, it was approximately 3 p.m. After showering, Russell called his parents in St. Clair, Pennsylvania, and asked about the weather. Shortly before 5 p.m., he departed from Quantico for his parents' home. 9 Though he owned an open-bed pickup truck, Russell borrowed Flynt's car, a blue four-door Mercury Tracer station wagon, for the drive to Pennsylvania. A neighbor, Rhonda McCumber, testified that she saw a small blue station wagon backed into a parking space near the door of the storage shed adjacent to the Russells' quarters at approximately 5 p.m. that day.

Sometime between 9:30 and 11:00 that night, Russell again called Sogren, and again asked whether she knew of Gibbs' whereabouts. As she had previously, Sogren told Russell that "he should know where Shirley is." Id. Russell told Sogren that he had not seen Gibbs since she left for the Marine Corps Exchange. He then said, "[Y]ou know, me and Shirley got really close this weekend," to which Sogren replied, "[R]ight, I know better than that because I know that Shirley wasn't going to get back with you." Id. Russell then

said, "[Y]ou know, [Shirley] is really at peace with herself." Id. at 637-38. After this last comment, Sogren hung up.

Flynt did not see Russell again until Monday morning, March 6. When Russell returned Flynt's car to her that day, she noticed that it had been cleaned, waxed, and vacuumed, and had a deodorizer hanging from the rearview mirror. Flynt testified that although Russell had borrowed her car in the past, he had never cleaned the car before returning it.

On that same morning, Russell asked Flynt's father-in-law, Robert Flynt, Sr., how he could remove bloodstains from concrete. Mr. Flynt, formerly a civilian painter at the Quantico base, told Russell that he should try cleaning the concrete with muriatic acid. 10

Gibbs did not show up for duty on that Monday, and she missed an appointment with Lance Kryzcwicki, a Navy chaplain who had promised to help Gibbs with her income taxes. Neither family nor friends have seen or heard from her since March 4, 1989. Gibbs' credit card, savings, and checking accounts have all been inactive since her disappearance, and the property that she placed in storage has remained undisturbed. Exhaustive searches for Gibbs' body in Quantico, Virginia, and St. Clair, Pennsylvania, have been unsuccessful. 11


The Government presented a substantial amount of evidence at trial, in addition to the evidence recited above. It introduced a computer disk that had been found in Russell's desk in Gulfport, Mississippi. On that disk was a file named "murder," which appeared to be a twenty-six-step guide to carrying out a murder. 12 The Government also introduced a gun (together with ammunition) that was similar to the...

To continue reading

Request your trial
205 cases
  • Muhammad v. Com.
    • United States
    • Virginia Supreme Court of Virginia
    • April 22, 2005
    ...the proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are violated. United States v. Russell, 971 F.2d 1098 (4th Cir. 1992); United States v. Shifflett, 798 F.Supp. 354 (1992); Read v. Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-47......
  • Muhammad v. Com., Record No. 041050.
    • United States
    • Virginia Supreme Court of Virginia
    • April 22, 2005
    ...the proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are violated. United States v. Russell, 971 F.2d 1098 (4th Cir.1992); United States v. Shifflett, 798 F.Supp. 354 (1992); Read v. Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-47 ......
  • U.S. v. Ellis, 96-4189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 6, 1997
    ...doubt, it may properly reject a defense requested[121 F.3d 925] instruction on reasonable doubt as redundant. United States v. Russell, 971 F.2d 1098, 1109 (4th Cir.1992). Here, appellant requested that jury be charged to find appellant not guilty if "... you believe that a bank robbery occ......
  • U.S. v. Heater
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 16, 1995
    ...particularly in light of our review of district courts' evidentiary rulings only for an abuse of discretion. United States v. Russell, 971 F.2d 1098, 1104 Page 321 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993). McCoy first claims that the district court......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT