U.S. v. Shores, 93-5454

• Decision Date: 06 September 1994
• Docket Number: No. 93-5454,93-5454
• Citation: 33 F.3d 438
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fred SHORES, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 438

33 F.3d 438

UNITED STATES of America, Plaintiff-Appellee, v. Fred SHORES, Jr., Defendant-Appellant.

No. 93-5454.

United States Court of Appeals Fourth Circuit.

Argued June 10, 1994.

Decided Sept. 6, 1994.

ARGUED: John Herman Hare, Asst. Federal Public Defender, Columbia, SC, for appellant. Alfred W. Bethea, Jr., Asst. U.S. Atty., Florence, SC, for appellee. ON BRIEF: J. Preston Strom, Jr., U.S. Atty., Charleston, SC, for appellee.

Before ERVIN, Chief Judge, PHILLIPS, Senior Circuit Judge, and JACKSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Chief Judge ERVIN and Judge JACKSON joined.

OPINION

PHILLIPS, Senior Circuit Judge:

Fred Shores, Jr. appeals his conviction for causing another to travel in or use the facilities of interstate commerce with intent that a "murder for hire" be committed, in violation of 18 U.S.C. Sec. 1958. His only substantial claim is that the district court erred in refusing to grant his motion for severance after admitting evidence of out-of-court statements made by his non-testifying co-defendant, which incriminated him, at their joint trial. We affirm.

I.

Shores was convicted of murder in North Carolina state court and was sentenced to life plus ten years. He later pled guilty to an unrelated federal charge and was sentenced to an additional seven years in prison. In July 1992, he was sent to the federal penitentiary in Leavenworth, Kansas, a maximum-security facility, to serve his federal sentence. While there, he met a man named Frederick Veselosky, who was then serving time for armed bank robbery.

Veselosky was paroled from Leavenworth in November of 1992. About six weeks later, he called the FBI and told them that Shores had offered him $5000 to kill Rita Durham, whose daughter had testified against Shores in his North Carolina murder case. Veselosky told the FBI that he had agreed to kill Durham for Shores, that Shores had given him a map with directions to Durham's home, and that Shores had arranged for him to pick up his $5000 from a man named Charles Ellis, who lived in South Carolina, when he successfully completed the murder.

The FBI asked Veselosky to help them build a case against Shores and Ellis, by acting as if he were going through with the murder plot. He agreed to do so. At the direction of the FBI, Veselosky sent a note to Shores in prison telling him that he would do the job for him; made a series of phone calls to Ellis, which were recorded by the FBI; and finally met with Ellis, armed with photographs of Rita Durham that had been doctored to indicate she was dead, and induced him to hand over the $5000. Ellis was arrested immediately thereafter, and he and Shores were charged with inducing Veselosky to commit "murder for hire," in violation of 18 U.S.C. Sec. 1958.

While Shores and Ellis were awaiting arraignment on these charges in a South Carolina jail, Ellis was placed in a cell with William Rhodes. Shortly thereafter, Rhodes told law enforcement authorities that Ellis had made some incriminating statements to him. ¹ According to written statements that Rhodes gave the FBI, Ellis told him, among other things, that he and Shores had been involved in a "murder for hire" plot whose intended victim was Rita Durham; that his role in the plot had been to pay Veselosky $5000 after he killed Durham; and that he did in fact pay Veselosky the $5000 after Veselosky showed him pictures of what he thought was Durham's corpse. Rhodes also told the FBI that Ellis had told him that he and Shores were paying a guard to let Ellis into Shores' cell at night so they could plan their strategy; that they were planning to subpoena five to seven Leavenworth prisoners to testify for them at trial; that these prisoners were going to give perjured testimony indicating that Shores had not hired Veselosky to kill Durham, but only to rob her, and that they were going to help Shores and Ellis escape from jail while they were in South Carolina; that he and Shores wanted to have Veselosky killed before their case went to trial to prevent him from testifying against them and would pay someone between $7,500 and $10,000 to do so; and that Shores also intended to have two other persons who had offered evidence against him in his North Carolina murder case killed.

The FBI gave Rhodes a polygraph test concerning his statements about his conversations with Ellis. Rhodes passed the test. The credibility of his statements was further bolstered when Shores did in fact subpoena a number of Leavenworth prisoners to testify for him at trial, and several of those prisoners actually tried to escape before the trial began, just as Rhodes had told the FBI that Ellis said they would. Following this escape attempt, but before the trial actually began, the government brought Rhodes' statements about his conversations with Ellis, as well as the evidence of the abortive escape attempt by the defense witnesses, to the attention of the district court. The information was presented to the court in an ex parte hearing, pursuant to Fed.R.Crim.Proc. 16(d)(1), because the government wanted permission not to disclose it to the defense. At this hearing, the government gave the district court copies of Rhodes' written statements to the FBI.

At trial, the government called Rhodes to the stand during its casein-chief to testify about what Ellis had told him in jail. Defense counsel immediately pointed out that this testimony might present Confrontation Clause problems under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), if Ellis did not testify himself. On the assumption that Ellis would testify, however, the court permitted the government to elicit some limited testimony from Rhodes about his conversations with Ellis. Rhodes then testified that Ellis had told him that he and Shores were involved in a "murder for hire" plot; that his role in the plot was to give Veselosky $5000 for killing Rita Durham; and that he had paid Veselosky the $5000 after being shown pictures of an apparently-dead Rita Durham. On cross-examination, Rhodes also testified that while Shores and Ellis were awaiting arraignment in South Carolina, they were paying a guard to let Ellis into Shores' cell at night, so they could hold strategy sessions. Rhodes did not give any further testimony before the jury about what Ellis had told him.

Shores' defense at trial was exactly what Rhodes had told the FBI that Ellis said it would be: that he had hired Veselosky to rob Durham, rather than to kill her. To support this defense, he called five Leavenworth prisoners, all of whom testified that they had overheard Shores and Veselosky planning to rob Durham, rather than to kill her, just as Rhodes had told the FBI that Ellis said they would. Ellis did not testify in his own defense, nor did he put on any other evidence. Instead, he relied solely on the argument that the government's evidence was legally insufficient to prove beyond a reasonable doubt that he knew that Veselosky was being paid $5000 to commit a murder, rather than for some other reason.

At the close of all the evidence, when it became clear that Ellis was not going to testify, Shores moved for severance, arguing that he had been denied his Sixth Amendment right of confrontation when Ellis' incriminating statements were admitted against him through the testimony of Rhodes, since Ellis did not take the stand himself and thus was not available for cross-examination. The government responded that the admission of these particular statements by Ellis did not present Confrontation Clause problems because they were admissible against Shores under the co-conspirator exception to the hearsay rule. The district court initially expressed skepticism about the government's argument, saying that it found no evidence in the record that the original "murder for hire" conspiracy between Shores and Ellis had continued after Ellis was arrested, that Shores and Ellis were involved in any later-formed conspiracy at the time Ellis made the statements in question, or that Ellis made those statements to Rhodes in furtherance of any such conspiracy. But the court recalled Rhodes to the stand and permitted the parties to examine him, out of the presence of the jury, to determine whether Ellis did in fact make the statements in question during the course of and in furtherance of a conspiracy between himself and Shores.

On recall, Rhodes testified that Ellis told him that he and Shores wanted to have Veselosky killed before their trial so that he could not testify against them and that they had gotten Veselosky's home and work addresses toward that end; that Ellis asked Rhodes if he knew anyone who could make the hit for them and how much he thought it would cost them; and that Ellis said he wished Rhodes were getting out of jail in time to do it for them. ² Rhodes also testified that Ellis told him that Shores intended to have two other witnesses who had testified against him in his North Carolina murder case killed; that he and Shores were planning to bring seven prisoners from Leavenworth to South Carolina to testify for them at trial; that the prisoners were going to give false testimony that they heard Shores tell Veselosky that he would pay him $5000 to rob Durham, rather than to murder her; and that they were going to help Shores and Ellis escape while they were in town.

After hearing this testimony and argument from the parties, the district court ruled that the statements made by Ellis which had been earlier introduced against Shores did not present Confrontation Clause problems, because they were admissible against Shores under the coconspirator exception to the hearsay rule. The court supported this ruling with specific findings, based on both Rhodes' testimony and the other evidence in the record, that the government had...