Wake Forest Law Review

By Eric Benedict

On January 7, 2016, the Fourth Circuit released its published decision in the criminal case, United States v. White. In White, the Fourth Circuit was called on to review William White’s (“White”) conviction for transmitting threats and committing extortion in foreign commerce. Due to a development in Supreme Court precedent, the court reexamined the mens rea requirements for both a threat and extortion in the context of 18 U.S.C. § 875. The court ultimately reformulated its standard and found error in the lower court’s jury instruction, but concluded it was harmless error and affirmed the conviction and sentence.

White Sends Threatening Messages to His Ex-Wife

In 2010, White was convicted by a jury of making threatening phone calls and sending threatening letters. He was subsequently sentenced to a thirty-month sentence. During his incarceration, his marriage to his wife (“MW”) began to fall apart, and ultimately failed. MW entered into an agreement to pay alimony to White. White later disappeared during his supervised release, fleeing to Mexico. Shortly thereafter, MW stopped making alimony payments. By late May, White began contacting MW, making three extorting threats and one additional threat by email. White threatened MW with physical violence if she refused to meet her alimony requirements and enlisted the help of his acquaintance, Gnos, to help enforce his threats. Gnos eventually contacted the FBI and provided information about their communication. Authorities apprehended White in Mexico and he was returned to stand trial in the Western District of Virginia.

An Anonymous Jury Returns a Guilty Verdict

At trial the District Court Judge empanelled an anonymous jury which found White guilty of three counts transmitting a threat in interstate commerce with the intent to extort under  18 U.S.C. § 875(b) and one count of transmitting a threat under § 875(c). After sentencing enhancements for prior convictions and obstruction of justice—each of which was upheld on appeal—the judge sentenced White to a 92-month prison sentence.

White appealed his conviction on six separate grounds ranging from evidentiary concerns centered around Gnos’ involvement to the empanelling of the anonymous jury, each of which the Fourth Circuit quickly disposed of. However, the court did spend significant time explaining its decision on two of the issues on appeal, both concerning the mens rea requirements of § 875.

The Fourth Circuit Reexamines § 875(c) Mens Rea in the Wake of the Elonis Decision

Judge Thacker explained that the Fourth Circuit had previously understood conduct to be unlawful under § 875(c) where, “(1) the defendant knowingly communicates a  statement in interstate commerce that (2) contains a ‘true threat’ that is not protected by the First Amendment.” Notably, this previous standard did not contain a requirement that the speaker intended the recipient to be threatened. The Fourth Circuit adopted this position because, “neither the statute nor the Constitution requires the Government to prove that a Defendant subjectively intended the recipient of the communication to understand it as threatening.”

In 2015, the United States Supreme Court announced its decision in Elonis v. United States. In Elonis, the Court explained that the omission of criminal intent from the statute did not mean there was no mens rea requirement. Instead the Supreme Court instructed lower courts to “read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” In the § 875(c) context, the Court indicated that a defendant must have “the purpose of issuing a threat, or [have] knowledge that the communication will be viewed as a threat.”

The Fourth Circuit took the opportunity in White to incorporate the Elonis decision into its understanding of § 875(c) to distill its test for guilt: “(1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; (2) that the defendant subjectively intended the communication as a threat; and (3) that the content of the communication contained a ‘true threat’ to kidnap or injure.”

Although the Court reformulated its standard and thus, found error in the lower court’s jury instruction, Judge Thacker found the error to be harmless, because there was no evidence on the record to persuade a reasonable jury that White meant to do anything other than to threaten MW.

White’s Right to Alimony Does Not Justify Bodily Threats

The Court next looked to White’s three-count conviction under § 875(b). White objected to his conviction on the ground that he lacked the mens rea for the charge and that he had a right to the money for which he allegedly extorted MW. The Fourth Circuit quickly disposed of White’s arguments with respect to mens rea. Although the court acknowledged the “intent to extort,” the court concluded that “one cannot have the intent to scare someone into relinquishing property or something of value by communicating a wrongful threat to kidnap or injure without also intending the communication to be threatening.”

White also alleged that, because he had a claim of right to the alimony payments, he could not have extorted MW. Differentiating White’s threats of bodily injury from “legitimate legal threats” or even threats relating to a party’s reputation stemming from true publications, the court noted that “a defendant may not threaten to injure or kidnap a person to collect a debt, even one legitimately due and owing.” Therefore, the court did not have to decide if White did have a legal claim to the funds.

The Fourth Circuit Unanimously Affirms the Conviction and Sentence

After disposing of the defendant’s two mens rea claims, the Fourth Circuit addressed the Defendant’s sentencing and jury claims. The court applied existing law to conclude that none of the objections formed a reversible ground for appeal on these facts. Therefore, the court concluded that it must affirm the conviction and sentence.

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By Eric Jones

On January 20, 2016, the Fourth Circuit issued a published opinion in the criminal case United States v. Moore.  Wendy Annette Moore and Christopher Austin Latham appealed their convictions for participating in a murder-for-hire plot, the target of which was Latham’s estranged wife.  Moore and Latham argued on appeal that the district court constructively amended the indictment against them through erroneous jury instructions, and improperly admitted both hearsay and character evidence.  The Fourth Circuit affirmed the convictions.

The Murder-For-Hire Plot

Latham was a banking executive in Charleston, South Carolina, and was dating his assistant Moore.  Moore and Latham allegedly hired Moore’s ex-husband Samuel Yenawine and his cellmate Aaron Wilkinson to murder Latham’s estranged wife Nancy Cannon.  Wilkinson was stopped by police as he drove through Charleston.  Wilkinson quickly revealed that he and Yenawine were involved in the plot, and that the murder had not yet occurred.

Although Wilkinson originally believed that he and Yenawine were setting out to purchase drugs, once on the road to Charleston from Louisville, Kentucky, Yenawine informed Wilkinson that they were in fact on the way to kill Cannon.  Once in Charleston, Yenawine purchased a pay-as-you-go cell phone, which he used to communicate to a then-unnamed woman that would meet them at the hotel.  Moore met the men, rented them a room, and gave the men $5,000 cash.  Yenawine later met with Moore a second time, returning with a manila envelope containing a “hit packet” with information about Cannon and her children, the plot to murder her, printed maps with handwritten notes, Cannon’s schedule and routine, and photographs of Cannon, her residence and her vehicle.  The items in the “hit packet” were linked to Latham and Moore through handwriting analysis.  Investigators also linked several of the items to Latham and Moore’s office computers and individual printers, and to their cell phones.  Cell phone tower evidence and bank records further linked Latham and Moore to the murder plot.

The Jury Instructions

After a jury trial, Latham was convicted of the use of interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. § 1958(a).  Moore was convicted of conspiracy to use interstate commerce facilities in the commission of murder for hire, solicitation of murder for hire, the use of interstate commerce facilities in the commission of murder for hire, and illegal firearm possession.  Latham was sentenced to 120 months in prison, and Moore to 180 months.

The federal murder-for-hire statute, 18 U.S.C. § 1958(a), enumerates two distinct and alternative prongs: the “travel prong” and the “facilities prong.”  Under the travel prong, the Fourth Circuit explained, a defendant may be convicted if she “travels in or causes another . . . to travel in interstate or foreign commerce.”  Under the facilities prong, a defendant may be convicted if she “uses or causes another . . . to use the mail or any facility of interstate commerce.”  Moore and Latham were being charged under the travel prong.  In its closing instructions, the district court read the indictment to the jury, advising them that the defendants were only being charged under the travel prong.  As it went on to describe § 1958(a), however, the court made two references to the uncharged facilities prong, indicating that a defendant may also be guilty of that prong.  Latham and Moore both filed post-trial motions arguing that the district court had constructively amended the indictment against them by mentioning the facilities prong.

Constructive Amendment of the Indictment

As the Fourth Circuit explained, a constructive amendment occurs when the government or the court “broadens the possible bases for conviction beyond those presented by the grand jury.”  The Court further explicated that the “key inquiry is whether a defendant has been tried on charges other than those listed in the indictment.”  Rather than rely solely on the jury instructions, however, the Fourth Circuit clarified that a reviewing court should “consider the totality of the circumstances—including not only the instructions and the indictment but also the arguments of the parties and the evidence presented at trial—to determine whether a jury could have ‘reasonably interpreted’ the challenged instructions as ‘license to convict’ on an unindicted charge.”  Although the Court conceded that in some circumstances a reference to the facilities prong could constitute an impermissible constructive amendment, it held that in this case it was not.  First, the bulk of the jury instruction properly tracked the indictment and omitted any mention of the facilities prong.  Additionally, the court’s opening instructions to the jury described only the travel prong.  The court also gave the jurors a copy of the indictment, which included only the travel prong, and expressly cautioned that the defendants were “not on trial for any act or crime not contained in the indictment.”

Furthermore, the entirety of Latham and Moore’s defense, as well as the entirety of the prosecution, focused on the travel prong and neither party mentioned the facilities prong.  The Fourth Circuit also noted that “the term ‘facilities of interstate commerce’ was never defined for the jury, and the government never suggested that . . . was a basis for convicting the [defendants].”  Thus, based on the totality of the circumstances at trial, the Fourth Circuit held that no juror could have reasonably believed that they were free to convict the defendants under the uncharged facilities prong.

The Hearsay and Character Evidence

At trial, the government called Yenawine’s new cellmate to testify that, before committing suicide after arrest, Yenawine told him about the murder-for-hire plot.  The district court allowed these statements to enter under the “statement against interest” exception to hearsay, found in Fed. R. Evid. 804(b)(3).  As Yenawine had no reason to lie to his cellmate, and the defendants could not establish that the district court abused its discretion in finding sufficient corroboration of Yenawine’s statements, the Fourth Circuit affirmed the district court’s decision.

Moore and Latham also argued on appeal that certain character evidence about Yenawine’s prior conviction for arson and his alleged involvement in murder was improperly admitted.  As these objections were not made at trial, however, the Fourth Circuit examined the record only for “plain error” that “seriously affect[ed] the fairness, integrity, or public reputation of [the] judicial proceedings.”  The Court moved quickly past these arguments, stating that “Moore and Latham have not established that any of the testimony to which they object was admitted in ‘error,’ let alone ‘plain error.’”  In fact, as the Court pointed out, “some of the testimony was elicited by the [defendants] themselves.”  Furthermore, “even assuming, arguendo, the existence of plain error, [the Fourth Circuit] could not find the ‘serious[] effect’ on the ‘fairness, integrity, or public reputation’ of judicial proceedings required.”

The Fourth Circuit Affirmed the Convictions

Because the totality of the circumstances of the trial indicated that no reasonable juror could have been confused by the jury instruction, the Fourth Circuit held that no constructive amendment of the indictment had occurred.  Additionally, because the evidentiary objections could be disposed of “briefly,” the Court affirmed Latham’s and Moore’s convictions.

By Carson Smith

On April 8, 2015, in United States v. Donahue, the Fourth Circuit upheld the conviction of Timothy Donahue for conspiracy to commit Hobbs Act robbery pursuant to 18 U.S.C. § 1951(a). A jury found him guilty and the district court sentenced him to 188 months in prison.

Donahue raised two issues on appeal. First, he argued “that the Government failed to establish a sufficient nexus to interstate commerce to support his convictions.” Second, he argued that the district court abused its discretion when it refused to instruct the jury that interstate commerce may not be implicated where a robbery “depletes the assets of an individual rather than a business.”

Factual Background of the Robbery

On July 21, 2011, Donahue, along with several accomplices, forcefully entered the home of Scott Beaver and demanded that he open a safe known to contain a large amount of money. Beaver complied and Donahue proceeded to rob the safe of 1.5 million dollars in cash.

Prior to the robbery, Donahue performed some glass work for Beaver. Beaver owned Beaver Honda and Salvage, a business that “sold cars and auto parts all across the United States and beyond.” Beaver compensated Donahue for his work with cash. Beaver would collect the cash from a room inside his house while Donahue waited in the living room. During one of these transactions, Donahue learned that Beaver kept all of his money in a house safe and that he was worth several million dollars. Upon learning this information, Donahue conspired to rob the safe and subsequently carried out the robbery.

There Was Substantial Evidence in the Record to Establish Federal Jurisdiction Under the Hobbs Act

On appeal, Donahue first argued that the Government failed to provide substantial evidence to establish that the robbery affected interstate commerce. Absent this element, federal jurisdiction does not exist.

The substantial evidence standard is satisfied where “a reasonable finder of fact could accept [the evidence] as adequate and sufficient to support the conclusion of a defendant’s guilt beyond a reasonable doubt.” The substantial evidence burden is very high and courts rarely reverse jury verdicts. Furthermore, under the Hobbs Act, the Government must only prove that the stolen funds had a “de minimis effect on interstate commerce.”

Donahue argued that the money in the safe did not have an affect on interstate commerce because it was taken from a private residence and it consisted only of Beaver’s private funds. However, in United States v. Powell, the Third Circuit held that money stolen from a private residence could still affect interstate commerce when the funds were used for business activities.

Here, the evidence was sufficient to show that Beaver used the funds in the safe for business purposes. Donahue specifically targeted Beaver because he knew Beaver “kept the proceeds from his business in a safe in his home.” Furthermore, evidence presented at trial proved that Beaver paid for his business with cash from the safe.

A substantial evidentiary basis existed for a jury to find that the money in the safe affected interstate commerce. Thus, the Government satisfied the jurisdictional element of the Hobbs Act.

The District Court Did Not Abuse its Discretion in Refusing to Give the Jury Certain Instructions Requested by the Defendant

Donahue also appealed on the basis that the district court abused its discretion when it refused to inform the jury that “interstate commerce may not be involved where the robbery depletes the assets of an individual rather than a business.” In reviewing a jury instruction for abuse of discretion, a court will only overturn the verdict when “the instructions, taken as a whole, [fail to] adequately state the controlling law.”

The Fourth Circuit held that the district court did not abuse its discretion in refusing to give this particular instruction.

The District Court Ruling Was Affirmed

The Fourth Circuit upheld the jury verdict and affirmed the jury instructions provided by the district court.

By: Dan Menken

Today, in United States v. White, the Fourth Circuit affirmed the conviction of Michael L. White for conspiracy to commit arson and mail fraud; aiding and abetting arson; and accessory after the facto arson. On appeal, White raised two challenges to the sufficiency of the evidence. First, White argued that the government failed to establish the nexus to interstate commerce required to sustain the arson-related convictions. Second, he claimed that the evidence was insufficient to establish that he assisted a co-conspirator in evading apprehension and punishment as required for accessory-after-the-fact conviction. Additionally, White challenged his sentence, arguing that the district court used an inflated base offense level as a result of the court’s erroneous determination that the duplex qualified as a “dwelling” under the United States Sentencing Guidelines Manual. Each of these arguments was rejected by the Court.

Defendant Accused of Burning Duplex to Recover Insurance Proceeds

White, who was struggling financially, had become increasingly irritated that the tenants of his duplex were not paying their rent. In June 2009, White purchased a fire-insurance policy to cover the duplex “as a two-family tenant-occupied” rental property. The policy provided $80,000 coverage for the duplex and $20,000 for its contents. Later that summer he offered $4,000 to his neighbors, Doug and Kim Kinder, to burn down the property. The Kinders agreed and set fire to the property on October 16, 2009.

In June 2010, Kim Kinder was contacted by the West Virginia State Police. She confessed to her involvement in the arson and agreed to cooperate with the police. Kinder made a recorded telephone call to White, in which White did not deny his involvement in the arson. When White was subsequently interviewed by police, he stated that Kinder had confessed to having started the fire. Testifying at trial, White denied knowledge of or involvement in the burning of the duplex.

 Was There Sufficient Evidence to Establish the Interstate Commerce Element?

Under 18 U.S.C. § 844(i), it is unlawful to “maliciously damage[ ] or destroy[ ], or attempt[ ] to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” In Russell v. United States (1985), the Supreme Court held that the arson of a two-unit apartment building that was used as rental property fell within the purview of 18 U.S.C. § 844(i). In that case, the Court concluded that the property was “being used in an activity affecting commerce” because the apartments in the building were rented to tenants at the time of the fire.

White’s appeal raised the issue of whether a rental house can still be classified as an activity affecting commerce if the tenants vacated before the fire was set. In United States v. Parsons (1993), the Fourth Circuit concluded that a rental property qualified as being involved in interstate commerce despite being vacant for two months at the time of the fire. There, the Court determined that there was sufficient evidence that the house was a rental property at the time of the fire because (1) the house was insured as rental property at the time of the fire, and (2) having found that the defendant commissioned the fire, the jury could also have reasonably inferred that the defendant never intended to take the house of the rental market.

Thus, applying Parsons, the Fourth Circuit concluded that there was sufficient evidence to support the conclusion that the duplex was being used in interstate commerce.

Was There Sufficient Evidence to Support a Conviction for Accessory After the Fact to Arson?

In order to prove accessory after the fact under 18 U.S.C. § 3, the government must demonstrate “(1) the commission of an underlying offense against the United States; (2) the defendant’s knowledge of that offense; and (3) assistance by the defendant in order to prevent the apprehension, trial, or punishment of the offender.” The government charged that this occurred when he knowingly made a false and misleading statement to an insurance representative for the purpose of helping Kinder and himself avoid apprehension. White contended that his statement to the insurance agent was nothing more than a passing comment to an insurance representative who was not connected to law enforcement.

All the evidence must show is that White acted “in order to prevent the apprehension” of Kinder and himself. The Fourth Circuit held that the only logical purpose for White to attempt misdirection in his interview with the insurance agent was to ensure the Kinder would not fall under police scrutiny.

Was the Duplex a “Dwelling” for Sentencing Purposes?

White argued that the duplex was no longer a “dwelling” at the time of the fire because it was vacant. A “dwelling” is a “house or other structure in which a person or persons live,” including “the apartment or building . . . occupied by a family as a place of residence.” The Court pointed out that there was no indication that the duplex had ever functioned or would ever function as anything other than a dwelling. The fact that the duplex still had power and was in habitable condition pointed to the fact that it should be considered a “dwelling.”

Dissent: Cannot Be Both Principal and Accessory After the Fact

The dissenting Judge argued that the law does not allow White to be both responsible as a principal for the arson and also as an accessory by assisting himself and Kinder after the fact. Although Defendant did not preserve this error, the Judge believed that this issue cleared any plain error hurdle.