United States v. Barefoot

• Decision Date: 09 June 2014
• Docket Number: No. 13–4108.,13–4108.
• Citation: 754 F.3d 226
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Charles Robert BAREFOOT, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

754 F.3d 226

UNITED STATES of America, Plaintiff–Appellee,

v.Charles Robert BAREFOOT, Jr., Defendant–Appellant.

No. 13–4108.

United States Court of Appeals,Fourth Circuit.

Argued: March 20, 2014.

Decided: June 9, 2014.

ARGUED:Joseph Edward Zeszotarski, Jr., Gammon, Howard, Zeszotarski, PLLC, Raleigh, North Carolina, for Appellant. Seth Morgan Wood, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before WILKINSON, KING, and FLOYD, Circuit Judges.

Affirmed in part, reversed in part, and remanded with instructions by published opinion. Judge KING wrote the opinion, in which Judge WILKINSON and Judge FLOYD joined.

KING, Circuit Judge:

Charles Robert Barefoot, Jr., appeals the February 6, 2013 judgment of conviction entered against him by the district court, in conformance with the jury's verdict, on all six counts of a 2006 Superseding Indictment stemming from several instances of criminal conduct that Barefoot was accused of undertaking between October 2001 and June 2002. Barefoot also appeals the 180–month sentence of imprisonment imposed by the court on his various convictions. As described in particular below, we affirm Barefoot's convictions on Counts One through Four of the Superseding Indictment, but we reverse his convictions on Counts Five and Six. Nevertheless, because the latter two convictions did not materially affect his sentence—which was otherwise properly calculated—we do not remand for Barefoot to be resentenced.

I.

A.

Acting on information supplied by a confidential informant to the Bureau of Alcohol, Tobacco and Firearms (the “ATF”), a deputy of the Johnston County, North Carolina Sheriff's Department stopped Barefoot's van in traffic during the morning of July 19, 2002. The deputy searched the van with Barefoot's consent, finding two loaded semiautomatic handguns beneath the driver's seat.

Not quite two hours later, the ATF executed a search warrant at Barefoot's residence, where they discovered component materials for explosives, Ku Klux Klan clothing and propaganda, and twenty-five firearms (predominantly shotguns and rifles) in proximity to more than four thousand rounds of ammunition. A concurrent search of the house where Barefoot's son, Daniel, lived with several others, turned up two Kinestik binary explosive cartridges wrapped in newspaper and stored in a freezer. Daniel, eighteen years old and a Klansman in his father's group, told federal agents that Barefoot had given him the explosives, which other residents referred to as “liquid dynamite.”

On August 20, 2002, Barefoot was indicted in the Eastern District of North Carolina on a single count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. § 922(g)(8). The predicate order was entered in state court in Johnston County after the presiding judge found that Barefoot, on March 15, 2002, had held a 9mm pistol to the head of his wife, Sharon, and threatened to kill her. Barefoot pleaded guilty to the federal indictment pursuant to an agreement with the government by and through the United States Attorney for the Eastern District of North Carolina (referred to in the agreement as the “USA–EDNC”). Paragraph 4 thereof provided, in pertinent part:

The Government agrees:

* * * *

c. That the USA–EDNC will not further prosecute the Defendant for conduct constituting the basis for the Indictment; [and]

* * * *

f. That the USA–EDNC agrees not to use any information provided by the Defendant pursuant to this agreement to prosecute him for additional crimes, except for crimes of violence[.]

Memorandum of Plea Agreement, United States v. Barefoot, No. 5:02–cr–00219–01 (E.D.N.C. Jan. 21, 2003), ECF No. 39 (the “Plea Agreement” or the “Agreement”).¹

The “information provided by the Defendant” specified in Paragraph 4.f referred to Barefoot's obligation to “disclose fully and truthfully in interviews with Government agents, information concerning all conduct related to the Indictment and any other crimes of which the Defendant has knowledge.” Plea Agreement ¶ 2.h. As the result of their inquiry into Barefoot's activities, the ATF and FBI had come to suspect him of a number of crimes. Eyewitnesses had reported Barefoot in possession of a thirty-pound homemade bomb, and the agents were informed that local authorities had investigated Barefoot for alleged threats against the Sheriff's Department and other law enforcement agencies.

The district court accepted Barefoot's guilty plea at a hearing on January 21, 2003, after which the debriefing mandated by the Plea Agreement took place. There, Barefoot admitted having obtained the Kinestik cartridges in exchange for a hunting dog. Barefoot also recounted a meeting with Glen Gautier, Michael Brewer, and Mark Denning. The men had convened at Barefoot's home one evening during the late summer of 2001 to discuss a “problem” with Lawrence Petit, a fellow Klansmanin coastal Carteret County, North Carolina, whom Brewer had branded an informant. J.A. 70.

After considerable deliberation, the group resolved to have Petit moved inland to Robeson County, or, failing that, to “get rid of him.” J.A. 71. Barefoot permitted the others to use his van, and he lent Gautier two firearms. The trio returned a few hours later to inform Barefoot that Denning had shot and killed Petit, with the corpse having been buried in a hayfield belonging to Gautier's brother. Gautier handed Petit's wallet to Barefoot as proof of death; Barefoot destroyed it with a blowtorch. At the time of Barefoot's interview, Gautier and Denning had been arrested and charged with the murder, and Brewer was about to be.

Barefoot unequivocally denied having made any bombs, and he omitted all mention of a series of incidents in October 2001, which began when Daniel and two Klan associates—Jonathan Avery and Jonathan Maynard—stole more than thirty firearms from an outbuilding. The three thieves took their haul to Barefoot's residence, where Barefoot, Sharon, and Gautier assisted in wiping down the weapons to remove any fingerprints. The next day, Barefoot and Gautier transported some of the firearms to an area barn for safekeeping, and about ten or fifteen ultimately made their way to Brewer for sale on consignment.

On June 18, 2003, the district court sentenced Barefoot to 27 months in prison for his § 922(g)(8) conviction, granting him credit for time served since his July 2002 arrest. Upon his release from federal imprisonment on October 18, 2004, Barefoot was charged and detained by state authorities in connection with the Petit murder.

B.

While in state custody, Barefoot was again indicted by the grand jury in the Eastern District of North Carolina. The operative Superseding Indictment, filed August 2, 2006, charged Barefoot in Count One with conspiracy to receive, possess, conceal, store, barter, sell, and dispose of stolen firearms, see18 U.S.C. §§ 371, 922(j); in Count Two with the substantive § 922(j) offense; in Count Three with solicitation of another to assist in damaging and destroying by explosive the Johnston County Courthouse and Sheriff's Office, part of which was leased to the United States Department of Veterans Affairs, see id. §§ 373(a), 844(f)(1), 844(i); in Count Four with receiving an explosive (the Kinestik cartridges) with the intent that it be used to kill, injure, or intimidate other persons and to damage and destroy buildings, see id. § 844(d); in Count Five with a misdemeanor charge of improperly storing explosive materials, see id. §§ 842(j), 844(b); and in Count Six with distributing explosive materials to an individual (Daniel) under twenty-one years of age, see id. § 842(d)(1).

At the outset of a motions hearing on February 14, 2007, defense counsel apprised the district court that the judge in the state murder proceedings had expressed concern over Barefoot's mental condition. Counsel had thus elected to retain the services of a psychiatrist, who, after evaluating Barefoot, opined that he was not competent to stand trial. Based on the representations before it and on its own observations of Barefoot's demeanor, the court directed that he be delivered to the custody of the Attorney General for examination. See18 U.S.C. § 4241(b).

During a hearing on November 14, 2007, the district court reviewed the report of the government's mental health professionals, who diagnosed Barefoot as suffering from delusional disorder, mixed type (persecutory and grandiose delusions), and from personality disorder, NOS (antisocial traits). In accordance with the recommendation set forth in the report, the court found Barefoot incompetent, and it recommitted him to the Attorney General to determine his prospects for improvement. See18 U.S.C. § 4241(d). As a collateral consequence of the court's finding, the state court murder charge was dismissed on December 6, 2007, subject to reinstatement.

On November 26, 2008, the district court convened another hearing to decide whether Barefoot should be involuntarily medicated in an attempt to restore his competency. Barefoot appealed from the court's ruling in the affirmative, and, on February 9, 2010, we vacated that ruling and remanded for further consideration in light of our decision in United States v. Bush, 585 F.3d 806 (4th Cir.2009). Before the medication question could be resolved on remand, however, Barefoot's condition was determined to have spontaneously partially remitted. On March 15, 2011, without objection, the court found that Barefoot had regained his competency to stand trial and ruled that the case could proceed.

Prior to Barefoot's competency having come into question, he had moved the district court to dismiss the indictment as violative of the Plea...