United States v. Maldonado-Passage

• Decision Date: 14 July 2021
• Docket Number: No. 20-6010,20-6010
• Citation: 4 F.4th 1097
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Joseph MALDONADO-PASSAGE, a/k/a Joseph Allen Maldonado, a/k/a Joseph Allen Schreibvogel, a/k/a Joe Exotic, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

4 F.4th 1097

UNITED STATES of America, Plaintiff - Appellee,

v.Joseph MALDONADO-PASSAGE, a/k/a Joseph Allen Maldonado, a/k/a Joseph Allen Schreibvogel, a/k/a Joe Exotic, Defendant - Appellant.

No. 20-6010

United States Court of Appeals, Tenth Circuit.

FILED July 14, 2021

Brandon Sample of Brandon Sample PLC, Rutland, Vermont, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Timothy J. Downing, United States Attorney; Amanda Green, Assistant United States Attorney, on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before HARTZ, KELLY, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

It was a rivalry made in heaven.Joseph Maldonado-Passage, the self-proclaimed "Tiger King," owned what might have been the nation's largest population of big cats in captivity.Carole Baskin was an animal-rights activist who fought for legislation prohibiting the private possession of big cats.He bred lions and tigers to create big-cat hybrids—some the first of their kind.She saw the crossbreeding of big cats as evil.He built his business around using cubs for entertainment.She protested his events as animal abuse and urged boycotts.

The rivalry intensified after Baskin sued Maldonado-Passage for copyright and trademark infringement and won a million-dollar judgment.Maldonado-Passage responded by firing a barrage of violent threats at Baskin, mostly online.And he didn't stop there.Before long, he was plotting her murder.Twice, within weeks, he set about hiring men to kill Baskin—one, an employee at his park; the other, an undercover FBI agent.

Maldonado-Passage soon faced a federal indictment charging him with twenty-one counts, most for wildlife crimes, but two for using interstate facilities in the commission of his murder-for-hire plots.A jury convicted Maldonado-Passage on all counts, and the court sentenced him to 264 months’ imprisonment.

On appeal, he disputes his murder-for-hire convictions, arguing that the district court erred by allowing Baskin, a listed government witness, to attend the entire trial proceedings.He also disputes his sentence, arguing that the trial court erred by not grouping his two murder-for-hire convictions in calculating his advisory Guidelines range.On this second point, he contends that the Guidelines required the district court to group the two counts because they involved the same victim and two or more acts or transactions that were connected by a common criminal objective: murdering Baskin.

We hold that the district court acted within its discretion by allowing Baskin to attend the full trial proceedings despite her being listed as a government witness, but that it erred by not grouping the two murder-for-hire convictions at sentencing.Accordingly, we affirm the conviction but vacate the sentence and remand for resentencing.

BACKGROUND

I.Factual Background

Joseph Maldonado-Passage goes by many names: The Tiger King, Joe Exotic, and Joe Gone Wild to name a few—all a play on his owning and operating the Greater Wynnewood Exotic Animal Park (the Park) in Wynnewood, Oklahoma.The Park housed several species of exotic animals, though Maldonado-Passage became widely known for his big cats—lions and tigers and crossbred hybrids.

But with fame came scrutiny.Outspoken critics condemned his practices, particularly his traveling road shows at which he charged mall patrons to take photographs with young animals—usually tiger cubs.Carole Baskin was one of these critics.Baskin is "known in the industry as an animal rights activist."Appellant's App. vol. 3Bat 235.She owns Big Cat Rescue, a facility in Tampa, Florida, which she describes as a "sanctuary to about 60 exotic cats."Id. at 50;R. vol. 3at 417.Because she believes that breeding big-cat hybrids is a "very cruel practice,"Appellant's App. vol. 3Bat 57, and that it's "abuse" to breed cubs to be photographed for money, id. at 55, she began trying to discourage the malls along his route from hosting Maldonado-Passage's show.And when the shows went on, she and her supporters protested them.

After learning of Baskin's activities, Maldonado-Passage retaliated by renaming his road shows "Big Cat Rescue Entertainment," using similar lettering to mimic Baskin's "Big Cat Rescue."Id. vol. 3A at 289;id. vol. 3B at 4, 66.After some people confused her brand with his road shows, Baskin sued Maldonado-Passage and obtained a $1 million judgment for copyright and trademark infringement.Then she began trying to collect on it.Maldonado-Passage believed Baskin was trying to drown him in lawsuits to drive him out of business.Due to his ever-growing legal fees, he filed for bankruptcy.

Maldonado-Passage took to the internet to vent his anger with Baskin.He readily admits that he posted "some pretty outrageous stuff" online.Id. vol. 3D at 39.In one instance, he posted a picture of himself posing in a coffin with the caption, "I bought my good friend in Florida a Christmas present."Id. vol. 3B at 89–90.He also posted a Facebook photo of a jar containing a shrunken head made to look like Baskin's.He even recorded a video in which he fired a gun at a "Carole blowup doll."Id. at 111–12.As he put it, his stunts were just about the money: "the more viewers you have, the more money you raise."Id. vol. 3D at 40.As Baskin put it, his stunts showed that he was dangerously "obsessed" with her.Id. at 264.

But soon his threats weren't just words on Facebook.In August 2017, Maldonado-Passage took a fateful step and began plotting Baskin's murder.He enlisted one of his park employees, Alan Glover, to kill Baskin, promising to pay him $5,000 up front and more money after the murder.Glover agreed, proposing to kill her by "cut[ting] her head off," though he testified that he never really intended on going through with it.Id. vol. 3C at 31.

In November 2017, Maldonado-Passage arranged for Glover to travel to Texas to get a fake ID so that Glover could book travel arrangements to Florida without revealing his identity.Despite their initial agreement, Maldonado-Passage paid Glover only $3,000 up front.Before Glover departed, Maldonado-Passage took Glover's phone and gave him a new one to use along the way.The new phone contained pictures of Baskin so that Glover "wouldn't kill the wrong person."Id. at 47–48.

Just a few days after getting his fake ID, Glover flew from Oklahoma to Georgia under a false name and then drove to South Carolina.After a few weeks there, he drove to Florida.He testified that he had planned on visiting Baskin to tell her about Maldonado-Passage's "serious" intentions to have her killed.Id. at 51.But he got no further than partying on Florida beaches.Glover suspected that Maldonado-Passage knew he hadn't committed the murder in light of his inaction and the lack of news coverage of Baskin's murder.Glover waited several months before returning to Oklahoma, without so much as ever seeing Baskin.

Before Glover returned, Maldonado-Passage began communicating with a friend, James, who introduced him to a man named Mark.Unbeknown to Maldonado-Passage, Mark was an undercover FBI agent.In December 2017, just one month after Glover left for Florida, Maldonado-Passage and Mark discussed a plan to murder Baskin.Days later, Maldonado-Passage offered to pay Mark a $5,000 down payment for murdering Baskin and $5,000 more after the killing.At Mark's request, Maldonado-Passage agreed to get a pistol at a flea market to use for the murder.By February 2018, Maldonado-Passage had told James that he believed Glover had absconded with his money.And by March, Maldonado-Passage was still working on getting the money to pay Mark.But despite all his efforts, Maldonado-Passage's murderous plans failed, and his actions culminated in his eventual arrest.

II.Procedural History

In November 2018, a federal grand jury indicted Maldonado-Passage in a twenty-one-count indictment charging nineteen counts of wildlife crimes in violation of the Endangered Species Act,16 U.S.C. §§ 1531 – 1544, and the Lacey Act, 16 U.S.C. §§ 3371 – 3378, and, as relevant here, two counts of using interstate facilities in the commission of a murder-for-hire plot, in violation of 18 U.S.C. § 1958(a)¹and§ 2.Count 1 pertained to his use of interstate facilities to arrange for Glover to kill Baskin; and Count 2, his use of interstate facilities to arrange for Mark to do the same.

The government listed Baskin as a trial witness, so Maldonado-Passage moved to sequester her from the courtroom under Federal Rule of Evidence 615.In response, the government argued that Baskin had a right to remain in the courtroom as a crime victim under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771.The court allowed her to remain in the courtroom, rejecting Maldonado-Passage's argument that Baskin couldn't qualify as a crime victim under the CVRA absent a showing that she had suffered physical harm from his crimes.

In support of Count 1, the government offered evidence at trial of a November 7, 2017 phone call recording between Maldonado-Passage and James.During the call, the men discussed how Glover had picked up a fake ID in Texas after Maldonado-Passage had instructed him to conceal his identity while traveling to Florida to murder Baskin.In addition, the government presented testimony that the FBI had analyzed the contents of the cell phone that Maldonado-Passage had given to Glover before he left, itself a facility of interstate commerce.The cell phone, which Glover took with him to Florida, contained photos of Baskin to help Glover identify her.And Glover testified that he received a cash down payment from Maldonado-Passage to kill Baskin after Maldonado-Passage sold one of his cubs.

In support of Count 2, the government played a recorded cell phone call² from December 5, 2017, in which Maldonado-Passage agreed to meet with James and Mark to discuss killing Baskin.The government also played a recorded conversation that took place...