U.S. v. Weathers
| Decision Date | 09 April 1999 |
| Docket Number | No. 97-5903,97-5903 |
| Citation | 169 F.3d 336 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Eugene WEATHERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Scott T. Wendelsdorf (argued and briefed), Jamie L. Haworth, Asst. F.P. Defender, Federal Public Defender's Office, Louisville, Kentucky, for Defendant-Appellant.
Terry M. Cushing (briefed), Monica Wheatley (argued and briefed), Asst. U.S. Attorneys, Office of the U.S. Attorney, Louisville, Kentucky, for Plaintiff-Appellee.
Before: DAUGHTREY and MOORE, Circuit Judges; COHN, * District Judge.
In this appeal, we are asked to decide whether the use of a cellular telephone in a murder-for-hire scheme satisfies the interstate commerce jurisdictional requirement of the federal murder-for-hire statute, 18 U.S.C. § 1958, where both parties to the conversation were within the state of Kentucky at the time of the telephone calls, but use of the cellular phone involved an interstate signal sent to communications equipment in both Kentucky and Indiana.
The district court held that this constituted "use of a facility in interstate commerce," as defined by the statute, and denied the defendant's motions for judgment of acquittal. A jury convicted Jeffrey Eugene Weathers on the federal murder-for-hire charge, as well as an armed drug-trafficker charge under 18 U.S.C. § 924(c). Weathers also pleaded guilty to three counts of distributing cocaine and one count of carrying a firearm during and in relation to one of the charged cocaine trafficking offenses, but he appeals only the § 1958 federal murder-for-hire conviction, alleging (1) the government's failure to establish jurisdiction under the murder-for-hire statute and (2) insufficiency of the evidence to establish a nexus between his activity and his use of the cellular telephone.
The proof at trial established that in September 1996, Sergeant Dale Vittitoe of the On October 11, 1996, Detective Dan Peterson of the Kentucky State Police, posing as a drug dealer, drove with Grant and Deckard to meet Weathers to purchase cocaine. While Deckard met with Weathers in his van, Detective Peterson monitored and audio-taped the drug transaction between Deckard and Weathers. The tape-recording of this transaction was played during trial. From it, the jury apparently learned that Weathers again discussed his desire that Grant help him murder Sergeant Vittitoe, stating that he did not want to go to jail and that he would like to be out of town at the time of the murder to avoid connection with the murder. Weathers asked Deckard to find out how much it would cost to have Vittitoe killed and offered to provide the gun.
Audubon Park (Kentucky) Police Department arrested Weathers and charged him with several state criminal offenses, including trafficking in cocaine, possession of cocaine, possession of a stolen firearm, two counts of carrying a concealed weapon, possession of drug paraphernalia, reckless driving, and speeding. While those state charges were pending, state law enforcement officials made a bargain with Renee Deckard to work as an informant arranging drug deals with Weathers, in return for the release of her boyfriend, Robert Grant, from the Bullitt County jail, where Grant was awaiting trial on a state felony charge. Deckard had purchased cocaine from Weathers some 20 times between December 1995 and February 1996, when she was jailed for shoplifting, and had maintained ties with him. In early October 1996, while Deckard was working with the authorities to arrange the purchase of drugs from Weathers, Weathers asked her whether her boyfriend, Grant, could find someone to kill Sergeant Vittitoe in exchange for money, so that the officer would be unavailable to testify against him in his upcoming state trial.
On October 17, 1996, Deckard met Weathers in a hotel and introduced him to Detective Peterson, who claimed to be a drug dealer willing to murder Sergeant Vittitoe in exchange for cash and drugs. Weathers had previously told Detective Peterson and Deckard to contact him by phone and had given them his cellular telephone number. Before the meeting, there were several phone calls between Weathers and either Detective Peterson or Deckard. During that meeting, Weathers sold cocaine to the officer and discussed the planned murder of Sergeant Vittitoe. The police videotaped this meeting, and this tape was also played for the jury at trial.
On October 21, 1996, Detective Peterson and Deckard met Weathers again at a hotel in Brooks, Kentucky. There were four telephone calls to and from Weathers before the meeting, each of which was recorded and played for the jury at trial. The first call was made by Detective Peterson to Weathers. The others were made by Deckard in Detective Peterson's presence and at his direction. One audio-taped telephone conversation played for the jury contained a discussion in which Detective Peterson asked Weathers whether he had "something to wrap it in," which Detective Peterson testified referred to the shotgun that Weathers intended to bring to the hotel room that evening and that needed to be hidden upon entry to the hotel.
During the meeting on October 21st, Detective Peterson purchased a small amount of cocaine from Weathers. Weathers also gave Detective Peterson a .410 shotgun and .410 gauge shotgun shells, and the two discussed the planned murder of Sergeant Vittitoe. Detective Peterson testified that by the end of the meeting, he believed that the two had made an agreement that Weathers would pay him $2,500 and two ounces of cocaine in return for the murder of Sergeant Vittitoe. Although Weathers had brought the murder weapon and payment had been discussed, the two had not set a time for the payment or the murder because Weathers's court date on his state charges had been continued. Detective Peterson testified that although the time had not been set for the murder, his understanding was that Weathers intended to have him murder the Sergeant at some point before the trial on his state charges. At the conclusion of the meeting, Weathers was arrested, and police seized several weapons, his cellular telephone, and his pager from him.
Weathers subsequently pleaded guilty to three cocaine distribution charges but went to trial on the § 1958 murder-for-hire and § 924(c) armed drug trafficker counts. At the close of the government's case-in-chief, Weathers moved for a directed verdict on the § 1958 murder-for-hire count, contending that the United States had produced no evidence that any of the telephone calls to or from Weathers and the police officers or Deckard had crossed state lines. Weathers argued that the government's failure to show that the murder-for-hire scheme involved interstate commerce deprived the district court of jurisdiction over the case. After discussion with counsel about the proper interpretation of the interstate commerce requirements of § 1958 and a brief recess, the district court stated that based on its interpretation of the statute, use of the cellular phone would satisfy the interstate commerce element if the search signal for the cellular phone crossed state lines. On the government's motion and over the defendant's objection, the court allowed the government to reopen its case to present evidence about the manner in which Weathers's cellular phone operated.
The United States called an expert witness, Jamie Newman, who was an employee of Bell South Mobility and had received specialized training about the manner in which the Bell South Mobility cellular network operated in the Louisville service area. Newman confirmed that Bell South Mobility provided service to the cellular telephone used by Weathers and that the service for his telephone number allowed for local, long distance, and interstate calls. The local coverage area for Weathers's phone included the metropolitan Louisville area, including southern Indiana. Newman explained that a cellular phone constantly sends out its own radio signal, which is comprised of the cellular telephone number and the electronic serial number, a unique identifier for each cellular telephone. A "cell site" is a place where Bell South Mobility has equipment, such as a tower or antenna, that allows it to receive and transmit signals from cellular phones.
When someone placed a call to Weathers's cellular telephone, the call was routed via trunk lines to the local telephone switching office, known as "METSO." The switching office then sent out a paging signal to search for Weathers's cellular phone. The paging signal was sent out to all of the "cell sites" located in Kentucky and Indiana simultaneously, and those cell sites, in turn, searched for the signal that was being emitted constantly from Weathers's phone. The interstate signal sent out by the switching office did not search for Weathers's cellular phone, but instead searched for a cell site which was receiving the signal from Weathers's phone. Technically, it was searching for that phone's registration, which is composed of the telephone number and the electronic serial number, on a certain cell site. Thus, the defendant's phone could not receive the interstate searching signal; only the cell site could pick up that signal. Once the cell site nearest to Weathers's phone was located, the interstate signal was terminated, and Weathers's phone was ready to receive or transmit telephone calls. Then a new signal was sent to directly connect the caller with Weathers's cellular telephone. Thus, because both Weathers and the various parties who called him were at all times in Kentucky, the final connection made between their telephones was intrastate.
After the government closed its case the second time, Weathers renewed his motion for a judgment of acquittal on the federal...
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