Wake Forest Law Review

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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 David Darr

Today, in the criminal case of United States v. Beyle, a published opinion, the Fourth Circuit affirmed the convictions of two Somali pirates for various charges relating to piracy, including the murder of four Americans off the coast of Somalia.

Defendants Contended the Court Lacked Jurisdiction and Violated Constitutional Rights

On appeal, Abukar Osman Beyle, defendant, contended that the court lacked jurisdiction over the charges related to murder and firearm use because the murder occurred in Somalia’s territorial waters, not on the high seas. Shani Nurani Shiekh Abrar, the other defendant, claimed that his Fifth Amendment right to due process and his Sixth Amendment right to present witnesses material to his defense were violated because he was unable to access certain witnesses important to his duress defense.

The Hostage Situation Resulting in the Deaths of Four Americans and Subsequent Proceedings

In February of 2011, a group of Somali pirates, which defendants were a part of, armed with automatic weapons and a rocket-propelled grenade launcher captured a Yemeni fishing boat. Both Beyle and Abrar were listed on the ledger for dividing the spoils among the pirates. The pirates attacked a ship with four Americans aboard that was part of an international yacht rally. Abrar was the first to board the American ship, and once on board he subdued the Americans and cut the communication lines. When the pirates gained control of the ship, it was approximately 950 miles off of the Somali coast. The pirates let four Yemeni fishermen they had captured with the Yemeni boat leave on the Yemeni boat, while the pirates stayed on the American boat. The pirates took the Americans hostage and tried to secure a ransom using their connections on land in Somalia. The U.S. Navy was alerted to this and moved to intercept the vessel before it could reach Somali waters. The Navy engaged with the pirates for several days in an attempt to get them to surrender, but the pirates refused, threatening to kill the hostages. The pirates started to fire guns and rockets at a Navy vessel that was attempting to block the boat from reaching Somali waters. The Navy did not return fire. A group of pirates, including Beyle and Abrar, opened fire on the four Americans, killing them all. At this time, the vessel was between thirty and forty nautical miles off the coast of Somalia. Navy SEALs then boarded the vessel, and the pirates surrendered after four pirates were killed. The FBI questioned the pirates and Abrar claimed that he was kidnapped and forced to be the pirates’ mechanic, with his role later changing to guard. Abrar claimed that the only reason he did not leave with the Yemeni fishermen was because he was afraid of being arrested in Yemen. Abrar admitted to pointing a gun at the hostages, but denied taking part in the shooting.

All of the pirates were taken to the United States and charged with a variety of crimes related to the piracy and hostage taking, including murder. All but three of the pirates, pled guilty and were sentenced to life in prison. Beyle, Abrar, and another pirate decided to take the case to trial. Beyle filed a motion to dismiss any counts relating to the murders because he claimed the murders took place in Somali territorial waters, outside of U.S. jurisdiction. Abrar filed a motion to dismiss the case against him because he could not reach witnesses, including the Yemeni fishermen, that would provide evidence that he acted under duress, which could act as a defense to all the charges except murder. The district court denied both motions. The U.S. sought the death penalty for all three defendants at trial. The trial lasted over a month, and ultimately the jury voted to convict all three defendants to life in prison. The jury heard instructions on Abrar’s duress defense, but decided that duress was not applicable. Beyle and Abrar appealed.

Definition of “High Seas”

The Constitution gives the federal government the power to punish piracy and felonies committed on the high seas. In statute, Congress had defined the high seas as including any waters outside the jurisdiction of any nation. The United Nations Convention on the Law of the Sea (UNCLOS), which the United States has recognized but not ratified and Somalia has ratified, recognizes that a nation’s sovereignty covers only territorial sea, which is twelve nautical miles off the coast. However, UNCLOS also recognizes exclusive economic zones (EEZ), which UNCLOS treats as quasi-territorial for economic rights. These EEZs extend to 200 miles off the coast of a nation. UNCLOS does not define waters as high seas until outside of these EEZs.

High Seas Include EEZs

Beyle argued that because UNCLOS does not consider the high seas to start until 200 miles of the coast of nation, the court below did not have jurisdiction because the murders occurred within forty miles of the Somali coast. The Fourth Circuit disagreed because EEZs allocated economic rights, not other rights. The actual authority to punish criminal violations only extended to twelve nautical miles off the coast of Somalia according to UNCLOS. Therefore, EEZs were outside of a nation’s sovereignty, making them “high seas” according to U.S. law, regardless of what UNCLOS defines as high seas. In the alternative, Beyle argued that Somalia had passed a resolution in 1972 extending its jurisdiction to 200 miles from the coast. The Fourth Circuit was unsure of the validity of this resolution, and found that Somalia’s subsequent adoption of UNCLOS superseded any such resolution. Because the murder occurred outside of twelve nautical miles off of the Somali coast, the Fourth Circuit found that the murders occurred on the high seas and were thus subject to U.S. jurisdiction.

Fifth and Sixth Amendment Protections

The Fifth Amendment provides due process protections when the government seeks to deprive someone of life, liberty, or property. The Sixth Amendment grants the right to a process to obtain witnesses for criminal defendants. The Sixth Amendment is violated if a defendant is arbitrarily deprived of relevant and material testimony that is vital to his defense. The Fifth and Sixth Amendments are closely related and the right to call witnesses to defend oneself is essential to due process.

The Fifth and Sixth Amendments Were Not Violated for Abrar

Abrar claimed that his Fifth and Sixth Amendment rights were violated because he did not have access to overseas witnesses that would have testified to his character and would have aided in his duress defense. The Fourth Circuit disagreed because the Sixth Amendment did not grant a defendant the right to any and all witnesses, only a compulsory process to obtain witnesses. This process was still limited by practicality, and the court did not have jurisdiction over the witnesses Abrar wanted to call. Additionally, outside concerns such as the security of Somalia made it very impracticable to locate and subpoena these witnesses. The Fourth Circuit also expressed concerns that some of Abrar’s witnesses might be fictional based on investigations into those witnesses that were made. The Fourth Circuit also did not think that the evidence that those witnesses would have put on would have been material because none of them actually witnessed Abrar’s abduction by pirates. Additionally, there were better witnesses such as the pirates Abrar claimed abducted him that the U.S. already had in custody that could testify to Abrar’s abduction. However, Abrar refused to call these witnesses because they would have contradicted his story. The district court even offered Abrar the opportunity to give testimony limited to his abduction but he refused. The Fourth Circuit also saw ample evidence on the record that Abrar was a willing participant. Therefore, the Fourth Circuit ruled that Abrar’s Fifth and Sixth Amendment rights were not violated.

Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that the court had jurisdiction over the actions of the defendants and that Abrar’s Fifth and Sixth Amendment rights were not violated.

By Carson Smith

Today, in the criminal case United States v. Bran, the Fourth Circuit affirmed the Eastern District of Virginia, upholding both the conviction of Jose Armando Bran for conspiracy to commit murder and the district court’s interpretation of federal sentencing guidelines under 18 U.S.C. § 924(j).

Defendant Contends Trial Court Erred in Upholding His Conviction for Conspiracy to Commit Murder and Erred in Imposing a Mandatory Consecutive Sentence for the Conviction

Bran raised the following two issues on appeal: (1) the jury verdict was insufficient to convict on conspiracy to commit murder under § 924(j); and (2) the trial court erred in imposing a mandatory consecutive sentence for the conviction under § 924(j).

Defendant Was Convicted on Three Counts Related to the Murder of Osbin Hernandez-Gonzalez 

At trial, the government argued that Bran was the leader of Richmond Sailors Set, a violent sect of the MS-13 gang. The evidence established that in July 2011, Bran ordered two prospective members, Jeremy Soto and Luis Cabello, to kill Hernandez-Gonzalez as part of their initiation. Bran provided Soto and Cabello with a firearm to commit the murder and also ordered a current member, Michael Arevalo, to ensure that the murder was carried out.

Based on the order, Soto and Cabello carried out the murder, shooting Arevalo four times and leaving him to die by the James River. While Bran provided Soto and Cabello with a murder weapon, the firearm proved faulty. Instead, Soto and Cabello used Arevalo’s firearm to carry out the murder.

Bran was charged and convicted of three felonies for his role in the murder: (1) conspiracy to commit murder in aid of racketeering; (2) murder in aid of racketeering; and (3) use of a firearm during a crime of violence causing death to another. He was sentenced to 120 months for Count 1, mandatory life for Count 2, and life for Count 3. The trial judge ordered the life sentence for Count 3 to run consecutively with the other parts of the sentence.

The jury was given several instructions with regards to Count 3 under § 924(j). The jury was asked to fill out a three-part special interrogatory if they found Bran guilty. The interrogatory asked whether Bran aided, abetted, counseled, commanded, induced, or caused another to: (1) use a firearm during and in relation to a crime of violence; (2) carry a firearm during and in relation to a crime of violence; and/or (3) cause a firearm to be discharged during and in relation to a crime of violence. Even though the jury found him guilty of Count 3, the jury failed to find the second and third parts of the interrogatory beyond a reasonable doubt.

The Evidence at Trial Was Clearly Sufficient to Support Bran’s Conviction Under § 924(j)

Bran argued that the evidence at trial was not sufficient to support his conviction under § 924(j). While an appellate court reviews sufficiency of the evidence challenges de novo, a court need only find that there was enough substantial evidence at trial for a reasonable juror to find the defendant guilty of the charge.

In order to convict a defendant under § 924(j), the government must prove “(1) the use of a firearm to cause the death of a person and (2) the commission of a § 924(c) violation.” § 924(c) “prohibits the use or carrying of a firearm in relation to a crime of violence or drug trafficking crime . . .” Finally, 18 U.S.C. § 2 provides that a person “is punishable as a principal” if the person (a) “aids, abets, counsels, commands, induces or procures” the commission of a criminal offense; or (b) “willfully causes an act to be done which if directly performed by him or another” would be a criminal offense.” Pursuant to 18 U.S.C. § 2, Bran was charged as the principal for both the § 924(c) and § 924(j) violations.

The Fourth Circuit held that the trial court did not err in convicting Bran under § 924(j). The evidence at trial was clearly sufficient to find that Bran aided and abetted the murder of Hernandez-Gonzalez through the use of a firearm. While Bran ostensibly claimed that the evidence did not support the conviction, the bulk of his argument focused on the juries failure to find all three of the special interrogatories. However, the Fourth Circuit emphasized that the jury found Bran guilty on the general verdict form and found that he “caused a firearm to be discharged.” The “caused” language should be interpreted broadly to encompass “use of a firearm” under 924(j). Therefore, the conviction was affirmed.

The Trial Court Did Not Err in Applying a Mandatory Consecutive Sentence for the § 924(j) Conviction

Bran argued that the trial court erred in applying a mandatory consecutive sentence for the § 924(j) conviction. Bran argued that sentencing under § 924(j) should be left up to the discretion of the judge. This issue was reviewed de novo.

According to the majority, the relation between § 924(c) and § 924(j) requires that the latter be interpreted to require mandatory consecutive sentencing. Because § 924(j) is separated out from § 924(c), Congress must have intended for § 924(j) to be given the effect of enhancing the sentence imposed by conviction under § 924(c). To interpret the statute otherwise would lead to the conclusion that a person with a § 924(c) conviction which resulted in murder could face a more lenient sentencing scheme than if the murder never occurred. The majority also emphasized that of the five circuits to have been presented with this issue, four have held that § 924(j) requires mandatory consecutive sentencing. For these reasons, the majority affirmed the trial court’s decision.

The dissent disagreed with the majority primarily on two points. First, the dissent argued that § 924(j) is discrete from § 924(c). Thus, the express statutory mandate of § 924(c) should not be applied to § 924(j). Second, Congress enacted § 924(j) so that prosecutors could “extend the death penalty to second-degree murders.” The power to impose the death penalty does not result in a more lenient sentencing scheme. For these reasons, § 924(j) should not be interpreted as requiring mandatory consecutive sentencing.

Fourth Circuit Affirmed the Conviction and Sentencing of the Trial Court

Accordingly, the Fourth Circuit upheld the trial court’s conviction of Bran under § 924(j) and the trial court’s interpretation of § 924(j) as requiring mandatory consecutive sentencing.