U.S. v. Waldon

• Decision Date: 25 March 2004
• Docket Number: No. 03-10673.,03-10673.
• Citation: 363 F.3d 1103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Karl T. WALDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

363 F.3d 1103

UNITED STATES of America, Plaintiff-Appellee, v. Karl T. WALDON, Defendant-Appellant.

No. 03-10673.

United States Court of Appeals, Eleventh Circuit.

March 25, 2004.

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A. Russell Smith (Court-Appointed), Jacksonville, FL, Steven Michael Potolsky (Court-Appointed), Miami, FL, for Defendant-Appellant.

Lisa J. Stark, Dept. of Justice, Washington, DC, Peggy Morris Ronca, Asst. U.S. Atty., Jacksonville, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, RONEY and FAY, Circuit Judges.

PER CURIAM:

Defendant Karl Waldon, a former law enforcement officer for the Jacksonville Sheriff's Office, appeals his conviction for his involvement in a crime spree that culminated in the robbery and murder of convenience store owner Sami Safar. Waldon asks for reversal of his conviction based upon perceived grand jury irregularities, and also submits that reversible error occurred when the trial judge failed to suppress his own grand jury testimony and when the court death qualified the jury. Finally, Waldon claims that when the jury, at sentencing, failed to recommend either death or life imprisonment, the language of the Federal Death Penalty Act ("FDPA") precluded the trial judge from giving him a life sentence. We reject each of Waldon's claims and affirm his conviction and sentence.

I.

Karl T. Waldon was a sworn deputy sheriff of the Jacksonville Sheriff's Office ("JSO"), serving as a member of the SWAT team from 1994 to 1997. In April 1997, Waldon began serving as a narcotics detective for JSO. In November of that same year, Officers Aric Sinclair and Jason Pough were also assigned to the narcotics unit. Sinclair and Pough brought with them to their new unit a penchant for stealing money from drug dealers, including a local dealer named Daryl Crowden. These illicit activities flourished when they were placed in Waldon's division, and Waldon soon joined in. The three absconded drugs and money from criminals for their own use, often reselling the drugs through other dealers for profit, and eventually began burglarizing houses and hotel rooms of known drug dealers. Crowden soon became the trio's partner in crime, informing the officers of potential hits and purchasing the drugs they stole.

The Safar Murder:

In 1998, Sinclair took a job doing off-duty security work for South Trust Bank. After noticing that two bank customers, convenience store owner Sami Safar and his nephew Hassam Tahhan, routinely withdrew large amounts of cash for their business, Sinclair concocted a plan with Crowden to rob the men. On May 15, Crowden and Jeffrey Reed arrived at the bank while Tahhan was inside. When Tahhan returned to his car with a money bag containing approximately $50,000, Reed pointed a gun at him, grabbed the bag and fled with Crowden. Crowden then gave Sinclair $20,000 of the stolen money.

Upon learning of the Tahhan robbery, Waldon told fellow officer Reginald Bones that he "would like to get a hit like that." Waldon approached Sinclair, who provided him with a description of Safar's vehicle but refused to assist him in another robbery because "the heat [was] on" from the first robbery. Pough also refused to help, so Waldon recruited Officer Bones and recovering drug addict and convicted felon Kenneth McLaughlin to assist in pulling off the heist. According to the plan, Bones would drive over to the bank and notify Waldon when he saw Safar's truck. Waldon would then pull over Safar as if conducting a routine traffic stop, and Bones and McLaughlin would rush in, pepper spray the driver, steal his money and flee. Bones, however, backed out on the day of the robbery and Waldon was forced to reschedule the heist for the following week. In the meantime, Waldon's brother-in-law, James Swift, asked Waldon for a loan. Waldon told him that he could make the loan if Swift could help him to collect some money supposedly owed to him by a drug dealer.

On July 3, 1998, Waldon, in his squad car, and McLaughlin and Swift in a Maxima, arrived at a location near the bank. Swift was instructed to alert Waldon when Safar left the bank. Waldon's new plan was to pull over Safar, create a reason to arrest him, and take him away — at which point Swift and McLaughlin would take the money from Safar's car. The plan was proceeding accordingly. However, when Waldon arrested Safar, he refused to part with his money. Waldon called McLaughlin and Swift on a cell phone and told them to follow his squad car. The three continued to talk as they drove, and Waldon became very anxious because "the person had seen his face." The men finally stopped in a parking lot to decide what to do, and Waldon decided that Safar had to be "taken out." McLaughlin objected and the three began yelling at each other, at which point Waldon decided to relocate to another parking lot.

At the second parking lot, Waldon stepped out of his car with a black rope in his hand and yelled at Swift and McLaughlin to get out of their car. At first they refused, but then reluctantly approached Waldon's car. Waldon opened the back door and Safar, still handcuffed behind his back, began begging for his life. With McLaughlin blocking Safar's exit, Waldon followed Safar into the back seat, put the rope around his neck and choked him. Safar fell between the seat and the cage of the squad car and Waldon ordered McLaughlin to get into the back seat and finish "choking him out." Safar uttered his last breath as McLaughlin climbed into the back seat and reached for the rope. After McLaughlin informed Waldon that Safar was dead, Waldon frantically drove around the city with McLaughlin in his patrol car and Swift following in the Maxima. Eventually, Safar's body was transferred to the Maxima and subsequently dumped by McLaughlin in a secluded area. The three later met at Swift's apartment to divvy out the money and clean up their tracks.

Waldon's Grand Jury Testimony:

In late 1999, two drug dealers were arrested and began cooperating with federal authorities regarding potential corruption in the JSO. The two dealers soon fingered Crowden, who agreed to cooperate and recorded several conversations with Sinclair. Sinclair eventually learned that he was the subject of a federal grand jury investigation and that Waldon and Crowden were also being questioned.

Consequently, on February 15, 2000, Waldon was served with a federal grand jury subpoena, accompanied by a letter explaining that he was the subject of the investigation. Waldon appeared on February 16 and, under oath, lied about (among other things) the reason he had visited Sinclair at the bank and whether he recognized photos of Safar and Safar's truck.

Bones was later subpoenaed to testify before the grand jury but was not asked, nor did he volunteer, any information about the Safar incident. However, after his testimony he told a JSO detective that McLaughlin had information about Waldon. Law enforcement officers questioned McLaughlin three times in late May 2000, and, on the third occasion, he told them about the robbery and murder of Safar. Waldon soon learned of McLaughlin's cooperation, and told Pough "they [are going to] find Kenny [McLaughlin] somewhere with his head cut off." Soon after, Pough decided to cooperate with authorities.

In December 2000, Waldon, Sinclair and Swift were charged by federal indictment. On August 21, 2002, the government, to some extent utilizing "read-back" testimony from the previous grand jury, secured a second superseding indictment against Waldon, now containing a "Notice of Special Findings" indicating the aggravating factor which it intended to prove at sentencing that would merit the death penalty. After a jury trial, Waldon was convicted on fourteen of fifteen counts. At sentencing, however, the jury rejected the government's theory that Waldon murdered Safar for "pecuniary gain," one of the aggravating factors that would justify the death penalty for a felony murder conviction, and the district court judge sentenced Waldon to life imprisonment.

II.

Waldon contends that the district court erred when it denied his motion to dismiss the second superseding indictment, which, he argues, was secured in violation of the Fifth Amendment's grand jury clause. We review Waldon's challenge to the district court's denial of his motion to dismiss the indictment under the abuse of discretion standard. United States v. Pielago, 135 F.3d 703, 707 (11th Cir.1998). He raises a variety of "factors" he believes "cumulatively" amounted to a defective indictment: the grand jury proceedings that produced the second superseding indictment were (apparently) limited to agents re-reading previous grand jury testimony of material witnesses¹; the government concealed from the grand jury substantial, material exculpatory evidence; and the pretrial publicity accompanying this case prejudiced the grand jury. The flaw in Waldon's argument, however, is that none of these "factors," taken on their own, are legal errors. Therefore, these factors taken together do not "cumulatively" become errors merely because they occurred contemporaneously.

First, Waldon can point to no authority for his position that an indictment cannot be based on read-backs and hearsay witnesses. To the contrary, this Court has explicitly found that relying on such testimony does not merit dismissal of the indictment upon which the testimony was based. United States v. Brown, 872 F.2d 385, 387-88 (11th Cir.1989). Though some courts have expressed criticism in relying solely on hearsay testimony, Waldon simply cannot overcome this Court's ruling in Brown, which involved virtually the exact scenario we are presented with here — read-back testimony of an investigating agent rather than direct testimony from the witnesses themselves. Our Court found that this did not result in the fundamental unfairness that would merit...