U.S. v. Scott
| Decision Date | 13 May 1998 |
| Docket Number | No. 96-3240,96-3240 |
| Citation | 145 F.3d 878 |
| Parties | 49 Fed. R. Evid. Serv. 618 UNITED STATES of America, Plaintiff-Appellee, v. Theresa L. SCOTT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Peter Witte, Law Student (argued), Kenneth M. Hays, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.
Mark H. Kusatzky (argued), Chicago, IL, for Defendant-Appellant.
Before CUMMINGS, COFFEY and DIANE P. WOOD, Circuit Judges.
On March 8, 1996, a jury convicted the defendant-appellant, Theresa L. Scott ("Scott"), on seven counts stemming out of two separate murder-for-hire schemes conceived to kill her former lover, Donald Hogan ("Hogan"). Specifically, Scott was convicted on two counts of conspiring to use interstate commerce facilities for the commission of murder-for-hire in violation of 18 U.S.C. § 1958(a), two counts of aiding and abetting travel in interstate commerce in the commission of murder-for-hire in violation of 18 U.S.C. § 1958(a) and 18 U.S.C. § 2, and three counts of using interstate commerce facilities for the commission of murder-for-hire in violation of 18 U.S.C. § 1958(a).
At the sentencing hearing, the trial judge grouped Scott's various offenses under the United States Sentencing Guidelines ("U.S.S.G."), section 3D1.2(b) and assigned her a base offense level of thirty-two. The judge then determined that Scott's pursuit of two separate murder-for-hire contracts warranted an increase in the base level offense by two levels yielding an adjusted offense level of thirty-four. In so doing, the judge found that Scott's hiring of consecutive murder contracts fell outside the "heartland" of cases considered under section 3D1.2(b). The court sentenced Scott to 211 months incarceration, imposed a fine of $20,000, and ordered her to pay a $350 special assessment. Scott appeals both the final judgment and the sentence. We affirm.
Scott and Hogan met in Indiana in the fall of 1990. The two engaged in an extramarital affair which lasted some five years. Hogan fathered two of Scott's children, and visited Scott on numerous occasions. Hogan presented Scott with a variety of expensive gifts, including automobiles and jewelry, and beginning in 1992, purchased two life insurance policies valued at $650,000, which designated Scott as the beneficiary. During the relationship, Hogan also purchased several properties and named Scott a joint tenant in ownership.
In early 1994, Scott began to lose interest in Hogan. Presumably to benefit from the valuable life insurance policies Hogan had purchased, Scott decided to have Hogan killed and launched the first of two murder-for-hire schemes in the fall of 1994. Scott approached Tomas Alvarez ("Alvarez") in October of 1994, proposing that Alvarez kill Hogan. In exchange, Scott offered to pay Alvarez $75,000 of the proceeds of the life insurance policies she intended to collect upon Hogan's death. After confirming that she was the beneficiary of the life insurance policies, Scott directed Alvarez to proceed with the murder scheme. She provided Alvarez with Hogan's business card and photograph. To avoid suspicion, Scott instructed Alvarez to carry out the killing in a manner that would cause police to conclude that the murder had resulted from a botched robbery.
In June of 1995, Alvarez drove from South Bend, Indiana, to Posen, Illinois, where Hogan's business was located, to commit the murder. In Posen, police officers stopped Alvarez after noticing that his vehicle license plates were stolen. A check of Alvarez's record revealed an outstanding arrest warrant in the state of Florida. Posen police arrested Alvarez and incarcerated him at the Cook County Jail until July of 1995. During his confinement, Alvarez attempted to "subcontract" Hogan's murder to his cell mate, Jeffrey Pritchett ("Pritchett"). Alvarez was not aware that Pritchett, although a gang member, worked regularly with the Chicago Police Department ("CPD") as an informant. Alvarez placed two telephone calls to Scott, informing her of his continued efforts and requesting that she post his bond. Scott refused, apparently unconvinced of Alvarez's ability to complete the crime.
In light of her dissatisfaction with Alvarez's work, Scott initiated the second of the two murder-for-hire schemes in September of 1995. Scott contacted Melvin Bridges ("Bridges") and offered him $5,000 as a down payment for the murder, and $75,000 upon Hogan's death. 1 Bridges agreed and Scott supplied him with Hogan's name, business address, and photograph.
On September 14, 1995, Bridges traveled from South Bend to Chicago. However, instead of following through with the murder scheme, Bridges contacted Hogan to warn him about the contract on his life. Bridges left a message at Hogan's business, instructing Hogan to return his call.
Bridges returned to South Bend, where Hogan reached him. Although initially suspicious of Bridges's warning, Hogan ultimately accepted the murder conspiracy as truth. Bridges kept Scott's down payment and abandoned the conspiracy; Alvarez's efforts, however, continued.
After Alvarez and Pritchett were released from prison, Pritchett informed the CPD of Scott's murder conspiracy in October of 1995. Due to the interstate nature of the allegations against Scott, the CPD coordinated its efforts with the Bureau of Alcohol, Tobacco and Firearms ("ATF"). Pritchett provided information concerning Alvarez's offer to pay for the killing, Hogan's identity, and Scott's motive to collect the insurance proceeds. 2
In November of 1995, the ATF recorded several telephone conversations between Pritchett and Alvarez. The two discussed details of the murder conspiracy plan. On November 21, 1995, the ATF filed a criminal complaint against Alvarez and apprehended him in South Bend, Indiana. Alvarez gave a videotaped confession detailing his part in Scott's scheme to kill Hogan. The ATF then informed Hogan of the murder-for-hire plan, and Hogan revealed Scott's identity.
Later the same day, Alvarez agreed to assist the investigators in apprehending Scott. In a taperecorded telephone conversation from the South Bend Police Department, Alvarez falsely informed Scott that preparations for Hogan's murder were complete. He asked, "How do you want this done?" Scott replied, "You know." Alvarez then asked, "You want him dead?" Scott was quiet for several seconds before asking him where he was calling from. The next morning, Alvarez made another tape-recorded call to Scott, this time falsely informing her that Hogan was dead. Scott responded that she did not know what Alvarez was talking about. Meanwhile, the ATF prepared a criminal complaint against Scott, and received a warrant for her arrest. On November 22, 1995, the ATF arrested Scott and transported her to the South Bend Police Department. After receiving her Miranda warnings, Scott waived her right to remain silent and have counsel present, and prepared a two-and-a-half page handwritten confession, detailing her conspiracy.
On December 7, 1995, a grand jury returned an indictment against Scott asserting violations of 18 U.S.C. § 1958(a), which provides in relevant part:
Whoever travels in or causes another ... to travel in interstate ... commerce, or uses or causes another ... to use ... any facility in interstate ... commerce, with intent that a murder be committed ... as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined ... or imprisoned for not more than ten years, or both....
On March 8, 1996, a jury found Scott guilty on seven counts named against her in the indictment, five of which concerned the Alvarez conspiracy, and two of which concerned the Bridges conspiracy. At the sentencing hearing on September 3, 1996, the district court rejected the "unit" approach adopted by the presentencing report which recommended grouping the five Alvarez counts and the two Bridges counts separately. See U.S.S.G. § 3D1.4. Instead, the court agreed with Scott that all seven counts should be grouped together pursuant to U.S.S.G. § 3D1.2(b), thereby yielding a base criminal offense level of 32. See U.S.S.G. § 2E1.4. The court then denied Scott's request for a two-level reduction based on acceptance of responsibility under U.S.S.G. § 3E1.1(a) and instead imposed a two-level increase attributable to Scott's leadership role in the Alvarez conspiracy pursuant to U.S.S.G. § 3B1.1(c). In addition, the district court granted the Government's request, as detailed in the presentencing report, for an upward adjustment on the theory that Scott's entrance into two separate contracts for the murder of a single victim rendered her case atypical and outside the "heartland" of cases considered by the Commission in formulating the grouping rule under U.S.S.G. § 3D1.2(b). The district court imposed a sentence of 211 months, a fine of $20,000, and a special assessment of $350.
Scott appeals both the trial court's final judgment and sentence. Specifically, Scott argues that: (1) the Government failed to provide sufficient evidence for the jury to find beyond a reasonable doubt that she committed the necessary elements of the crimes charged; (2) the district court erred in denying her motion for a two-level reduction under U.S.S.G. § 3E1.1(a) based on her acceptance of responsibility for the crimes; (3) the trial judge erred in departing upward two levels because her conduct was not considered adequately by the Sentencing Commission in its formulation of U.S.S.G. § 3D1.2(b); and (4) the district court violated her Sixth Amendment right to confront the witness Alvarez, and this violation did not constitute harmless error.
"In challenging the sufficiency of the evidence to support [a] conviction[ ], [the defendant] bears a...
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