U.S. v. West

• Decision Date: 25 April 1990
• Docket Number: No. 88-3766,88-3766
• Parties: 30 Fed. R. Evid. Serv. 155 UNITED STATES of America, Plaintiff-Appellee, v. John Newark WEST, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1493

898 F.2d 1493

30 Fed. R. Evid. Serv. 155

UNITED STATES of America, Plaintiff-Appellee, v. John Newark WEST, Defendant-Appellant.

No. 88-3766.

United States Court of Appeals Eleventh Circuit.

April 25, 1990.

Kirk N. Kirkconnell, Winter Park, Fla., Nathan L. Bond, Tallahassee, Fla., for defendant-appellant.

Robert Moreno, H. Manuel Hernandez, Asst. U.S. Attys., Orlando, Fla., for plaintiff-appellee.

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

Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and HILL, Senior Circuit Judge.

HILL, Senior Circuit Judge:

John Newark West appeals from a conviction and sentence for use of an interstate commerce facility (a telephone) for solicitation of murder in violation of 18 U.S.C. Sec. 1952A. In particular, he appeals both evidentiary rulings and jury instructions given by the district court; he also challenges the validity of certain sections of the sentencing guidelines. We affirm the rulings of the district court, and we uphold the validity of the sentencing guidelines.

FACTS

In 1986, the appellant, John Newark West, began searching for an "absentee owner" business in which he could invest. In November of that year, he invested in a motorcycle shop called Cycles of Longwood, joining Charles Morgan and James Coughlin as a third partner. West owned sixty percent of the corporate stock.

By the end of 1986, West, Morgan and Coughlin accepted a $250,000 loan from Sun Bank, secured in part by a second mortgage on West's home and a $100,000 assigned life insurance policy on West's, Morgan's and Coughlin's life. Morgan left Cycles of Longwood in May, 1987; after he left, West's father invested an additional $50,000 into the store. Nonetheless, the business deteriorated, and in late November, 1987, Coughlin resigned, forfeiting his stock shares in the store, and leaving West to run the store alone.

In August or September, 1987, West began confiding in an old friend, Doug Kimball, about his business problems, and in particular about his overstocked inventory. West began by discussing the possible destruction of his business by either arson or by a staged burglary, and later discussed hiring a hitman to murder Coughlin. Although West did not realize it, Kimball was an FBI informant.

Beginning on January 24, 1988, Kimball began recording his telephone conversations with West. Kimball arranged for West to meet with a supposed hitman named "Chuck," who was actually an FBI special agent named Clifford Botyos. West spoke with Botyos on the telephone at his home the day before meeting with the hitman at a hotel in Orlando. West testified that he was at another Orlando hotel on February 2, 1988, on unrelated business, had "one maybe two drinks," and then called his wife.

Mrs. West told her husband that "Chuck" (the hitman) had called, and, according to West, became annoyed by his reluctance to return the phone call. At any rate, West returned the call and then met with Chuck at a separate hotel, (because according to West, "I was stupid, macho and half-drunk.") West testified that during this time period he hated Coughlin and felt "sick" about his financial problems at Cycles of Longwood, but that he never intended for the hitman to kill Coughlin. On February 9, 1988, however, West did telephone Kimball and inform him that he would send $2500 in cash and an information packet for the hitman. West also testified, however, that he returned Kimball's phone call only because Kimball was leaving him messages, that he tried to avoid everything about the hitman after his meeting with Chuck, and that when he told Ronald Gitlin, the husband of an employee from the store, to "check out" the hitman, he did so only because he feared the hitman might be genuine.

The FBI arrested West on the morning of February 23, 1988, while he was driving from his home to work.

TRIAL PROCEEDINGS

A grand jury indictment, returned March 23, 1988, charged West with two counts of violating the Federal Murder-For-Hire statute, 18 U.S.C. Sec. 1952A, and with a third count of possessing an unregistered silencer in violation of 26 U.S.C. Sec. 5861(d) and Sec. 5871.

Counts I and II concerned two long distance telephone calls that West made, respectively, on January 25, 1988, and on February 9, 1988, for the alleged purpose of discussing the contract murder of Coughlin. The third count stemmed from the discovery, on February 23, 1988, of an unregistered silencer in West's car at the time of his arrest. The jury returned "not guilty" verdicts as to Counts I and III, but found West guilty of Count II, regarding the February 9, 1988 telephone call.

Before the government had called its first witness, the appellant raised a Rule 404(b) objection to the government's playing before the jury that portion of a recorded, February 9, 1988 telephone conversation where West had informed Kimball that a mutual acquaintance might be "next on the hit parade." The court, however, overruled the objection and allowed the government to play the exhibit in its entirety.

The appellant also raised relevancy and materiality objections to Coughlin's redirect testimony that both he and his family had gone into hiding after the FBI had warned them of West's alleged plans. Furthermore, during the testimony of Botyos, the FBI undercover agent, the appellant raised Rule 404(b) objections to preclude the admission of government Exhibits 5, 7, 8 and 18 on the grounds that this evidence consisted of uncharged acts whose prejudicial impact greatly outweighed its probative value. Most of these exhibits consisted of taped telephone conversations between West and the supposed hitman Botyos; exhibit # 8, however, was a video and audio tape recording of a meeting between West and this same individual. The district court admitted the exhibits into evidence, and the government played them before the jury.

Before the government played the video tape of West's meeting with Botyos, the government inserted a test-tape into its audio-visual equipment in order to insure that the equipment was functioning correctly. In front of the jurors, the government inadvertently inserted a portion of the tape which showed a CNN news broadcast recounting a violent shooting in California which had occurred several months before the trial. The broadcast, although startling, had nothing to do with the facts of the instant case, and showed no actual footage of the gunman or the shooting. After the government had turned off the tape, the defense immediately moved for a mistrial. The district court denied the motion, admonished the government, and asked the jurors to stand if "... you feel in any way that you were affected by that test tape in your ability to render a fair and impartial verdict in this case." No juror arose, and the trial continued.

Jury deliberations began on Monday, June 27, 1985. On Tuesday afternoon, June 28, the jury announced a deadlock, and the court recessed until the next morning. On Wednesday morning, June 29, the district court delivered what it termed a "modified, modified Allen charge" to the jury. After the instruction, the jury resumed its deliberations; late the next day, the jury returned a verdict finding West guilty as to Count II, and not guilty as to Counts I and III.

On September 15, 1988, the district court, in accordance with the sentencing guidelines, sentenced West to fifty-one months incarceration, (less credit for time served), based on an offense level of twenty-three. The court denied his request for a downward departure to twenty months, and ordered that West be under supervised release for a period of three years following his release from incarceration. This appeal followed.

DISCUSSION

West appeals certain evidentiary rulings and jury instructions given by the district court; he also challenges the validity of the Sentencing Guidelines.

A. HEARSAY OBJECTION

West first contends that the district court abused its discretion, or committed plain error, when it sustained the government's hearsay objection. The government objected when West attempted to testify about certain out-of-court statements that Mr. Kimball made to West in late 1987 and early 1988, during numerous unrecorded telephone conversations. West asserts that either the "state-of-mind" exception to the hearsay rule, or the co-conspirator subsection of Rule 801(d)(2)(E), would render those statements admissible.

We agree that although West's account of Mr. Kimball's statements during their telephone conversation would be hearsay, the state-of-mind exception to the hearsay rule would render them admissible. Rule 803(3) of the Federal Rules of Evidence allows the admission of "... [a] statement of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health) ..."

West now correctly contends that the district court improperly prevented him from testifying as to the effect of Mr. Kimball's statements on his state of mind. He also suggests that his testimony as to Mr. Kimball's statements would have shed important light on his defense that he lacked the requisite criminal intent. In support of his argument, West cites a number of cases which hold that courts should admit statements which would otherwise be hearsay in order to show their effect on a defendant's state of mind. See e.g., United States v. Kohan, 806 F.2d 18 (2d Cir.1986); United States v. Wright, 783 F.2d 1091 (D.C.Cir.1986); United States v. Herrera, 600 F.2d 502 (5th Cir.1979); United States v. Rubin, 591 F.2d 278 (5th Cir.1979), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979).

Although the district court may have incorrectly characterized West's version of Mr. Kimball's statements as inadmissible hearsay, Rule 103 of the Federal Rules of Evidence explicitly provides that "... error may not be predicated upon a ruling which...