U.S. v. Weddell

• Decision Date: 01 October 1986
• Docket Number: No. 85-1676,85-1676
• Citation: 800 F.2d 1404
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keith WEDDELL, and Willie Hammond, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1404

800 F.2d 1404

UNITED STATES of America, Plaintiff-Appellee, v.Keith WEDDELL, and Willie Hammond, Jr., Defendants-Appellants.

No. 85-1676.

United States Court of Appeals Fifth Circuit.

Oct. 1, 1986.

Travis D. Shelton, Travis Dale Jones, Lubbock, Tex., for Weddell.

Warren Burnett, Odessa, Tex., Larry Zinn, San Antonio, Tex., for Hammond.

Sidney Powell, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., Michael R. Hardy, Asst. U.S. Atty., San Antonio, Tex., James Blankinship, Asst. U.S. Atty., Midland, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, RUBIN and GARZA, Circuit Judges.

GARZA, Circuit Judge:

City CouncilmanKeith Weddell, Will Weddell, Mayor Bob Bryant and attorney Ray Stoker, Jr., purchased the O'Michael Building, a two-story commercial office building in downtown Odessa, Texas, on July 1, 1980, for $135,000.Although the building was titled solely in Stoker's name, Keith Weddell kept the books and managed the building.In June, 1981, the owners increased the insurance coverage on the building from $200,000 to $420,000.

On November 25, 1981, at approximately 1:00 a.m., a fire severely damaged the O'Michael Building; state and local investigators eventually determined that the fire was the work of arsonists.The owners eventually sold the building for $150,000 and, after a settlement agreement, collected $160,000 in insurance proceeds.

In June, 1982, John Peterson, along with his brother Lawrence "Cotton" Peterson, and L.C. Burditt gave statements to the FBI implicating themselves in the arson.All three men had been convicted of felonies.A long government investigation ensued, and, on September 20, 1984, Keith Weddell and Willie Hammond, Jr., a county commissioner, were indicted for conspiracy to commit arson in violation of 18 U.S.C. Secs. 844(i)and371(Count 1) and for aiding and abetting the arson in violation of 18 U.S.C. Secs. 844(i) and (2)(Count 2).¹

Appellants' first trial, held in Midland, Texas, in February, 1985, resulted in a hung jury.The district court declared a mistrial and ordered the case transferred to El Paso for a second trial because of extensive publicity.Appellants were subsequently convicted on all counts.Appellants contend on appeal that the district court erred in transferring the case from Midland to El Paso.Weddell also argues that the evidence was insufficient to support his conspiracy and aiding and abetting convictions, while Hammond asserts that prosecutorial misconduct warrants a reversal of his convictions.Weddell and Hammond each take issue with the lower court's evidentiary rulings.

I.TRANSFER OF THE CASE

Absent a request from the defendant, a trial court may not order a change of venue because of pretrial or trial publicity.Fed.P.Crim.P. 21(a).United States v. Stratton, 649 F.2d 1066, 1076(5th Cir.1981)(Unit A).However, because venue exists anywhere within the judicial district in which the crime was committed, there is no right to trial within a particular division in a district.²United States v. Dickie, 775 F.2d 607, 610(5th Cir.1985).United States v. James, 528 F.2d 999, 1021(5th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326(1976).Moreover, a district court judge has "broad discretion in determining whether transfer [within a judicial district] is warranted."United States v. Alvarado, 647 F.2d 537, 539(5th Cir.1981)."Reversal is proper only where a party demonstrates a 'substantial ground for overturning the district court's [decision regarding an] intradistrict transfer'."Dickie, 775 F.2d at 609(quotingUnited States v. Malmay, 671 F.2d 869, 876(5th Cir.1982) ).Accordingly, the court's decision to transfer a case within a district is subject to the abuse of discretion standard of review.Id. at 610;Alvarado, 647 F.2d at 539;United States v. McRary, 616 F.2d 181, 185(5th Cir.1980), cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307(1982).

Appellants argue that the district court abused its discretion under Fed.R.Crim.P. 18 by failing to regard the convenience of the defendants and their witnesses.Rule 18 provides:

Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed.The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice.

Assuming that the transfer to El Paso was inconvenient to Appellants and their witness, the court, however, was also required to fix the place of trial with due regard to the "prompt administration of justice."In response to Appellants' request to move the trial back to Midland, the district judge stated:

Let the record reflect that I will not send the case back to the Midland-Odessa Division, that the case was previously tried there and ended in a mistrial with a hung jury.There was an inordinant [sic] amount of publicity and I do not believe that it would be fair to either Mr. Hammond or Mr. Weddell or the Government to attempt to try to select a jury there.As a consequence the Court on its own motion, without any request by either Defendant or the Government did transfer the case here last ... February....

It is apparent that the court considered the extensive publicity surrounding the first trial of these local public officials, and determined that a trial in Odessa would not be fair to the parties, and thus, would not further the administration of justice.We, therefore, find no basis for overturning the court's decision.SeeDickie, 775 F.2d at 610.

II.SUFFICIENCY OF THE EVIDENCE

It is well settled that an appellate court must review the sufficiency of the evidence and the inferences to be drawn from it in the light most favorable to the jury's verdict.Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680(1942).United States v. Steinfels, 753 F.2d 373, 377(5th Cir.1985)."It is the sole province of the jury to weigh the evidence and to determine the credibility of the witnesses."United States v. Ortiz-Loya, 777 F.2d 973, 979(5th Cir.1985).In reviewing Weddell's convictions, we must, taking the view most favorable to the government, determine whether a reasonably-minded jury could accept the evidence, whether direct or circumstantial, as sufficient to support the conclusion that Weddell was guilty of conspiracy and aiding and abetting the arson beyond a reasonable doubt.SeeOrtiz-Loya, 777 F.2d at 979;United States v. Warner, 441 F.2d 821, 825(5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58(1971).See alsoJackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560(1979)("the relevant question is whether ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt").

Conspiracy

"A conviction for conspiracy under 18 U.S.C. Sec. 371 requires that the government prove beyond a reasonable doubt (1) an agreement between two or more persons, (2) to commit a crime, and (3) an overt act by one of the conspirators in furtherance of the agreement."Ortiz-Loya, 777 F.2d at 981;United States v. Saenz, 747 F.2d 930, 937(5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3531, 87 L.Ed.2d 655(1985).Moreover, "in order to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself."United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 1265, 43 L.Ed.2d 541(1975);United States v. Wieschenberg, 604 F.2d 326, 331(5th Cir.1979).Weddell does not dispute that Hammond or the admitted arsonists committed an overt act in furtherance of an agreement to commit arson in violation of 18 U.S.C. Sec. 844(i), or that the arson took place.Therefore, our inquiry is whether there was sufficient evidence to support the jury's conclusion that Weddell entered into the agreement with Hammond or one of the arsonists.

According to Weddell, the government's only "direct attempt" linking him to the conspiracy was based on the testimony of John Peterson.Weddell contends that Peterson's testimony should have been excluded under the ruling of this court in United States v. James, 590 F.2d 575(5th Cir.)(en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283(1979).In James we held that a coconspirator's declaration was admissible when it has been

shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator's statement is offered were members of the conspiracy and (3) that the statement was made during the course and in furtherance of the conspiracy.

Id. at 582.Our holding was necessary to avoid the serious danger of prejudice to the accused from an erroneously admitted statement, and also "comport[ed] with earlier Supreme Court pronouncements that admissibility must depend upon independent evidence in order to prevent [a] statement from 'lift[ing] itself by its own boot straps to the level of competent evidence'."Id. at 581(quotingGlasser, 315 U.S. at 75, 62 S.Ct. at 467).

Based on our review of the record, we find substantial, independent evidence of a conspiracy among Weddell, Hammond and the others aside from any testimony of Peterson which would otherwise be inadmissible.Testimony of a state arson investigator established (1) that Weddell owned a 50% interest in the O'Michael Building; (2) that he and his co-purchasers bought the building with knowledge of a proposed civic center project for the area; (3) that the building was titled solely in Stoker's name to avoid any appearance of impropriety when the purchasers sold the property to the city for the civic center; and (4) that expenses on...