Unitеd States of America, Plaintiff - Appellee, v. Daniel Lewis Lee, also known as Daniel Lewis Graham, also known as D L Graham, also known as Danny Lee, Defendant - Appellant.
No. 02-2389
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: April 15, 2004; Filed: July 8, 2004 (Corrected July 19, 2004)
Before MORRIS SHEPPARD ARNOLD, MAGILL, and MURPHY, Circuit Judges.
A jury convicted Daniel Lewis Lee of conspiring to violate and violating the Racketeer Influenced and Corrupt Organizations (RICO) statute,
The evidence presented at trial showed that Lee, Chevie Kehoe (Kehoe), his father Kirby Kehoe, his brother Cheyne Kehoe (Chеyne), and Faron Lovelace participated in a variety of criminal activities to promote and fund a white supremacist organization known as the Aryan Peoples’ Republic or the Aryan Peoples’ Resistence (APR). Kehoe formed the APR to establish an independent nation of white members of the Christian Identity faith in the Pacific Northwest. He patterned it after an antigovernment, white supremacist organization called the Order.
Lee met Kehoe in 1995, and Kehoe recruited him into the APR. In January 1996, Lee and Kehoe left the state of Washington and traveled to Arkansas where they dressed in police raid clothing and went to the home of William Mueller, a gun dealer near Tilley who owned a large collection of weapons and ammunition. Kehoe and his father had robbed Mueller in February 1995, and Kehoe planned to find valuable property at his house. The Muellers were nоt at home when Lee and Kehoe arrived so they waited. When the Muellers returned, Lee and Kehoe overpowered and incapacitated Mueller and his wife. Then they questioned Nancy Mueller‘s eight year old daughter, Sarah Powell, about where they could find cash, guns, and munitions. After finding $50,000 in cash, guns, and ammunition, they shot the three victims with a stun gun, placed plastic bags over their heads, and sealed the bags with duct tape. They took the victims in Kehoe‘s vehicle to the Illinois bayou; there they taped rocks onto them and threw them into the bayou. The bodies were discovered in Lake Darnelle near Russellville, Arkansas in late June 1996.
Kehoe and Lee returned to Spokane with the stolen property around January 14, 1996. Kehoe traveled to several states to sell the Mueller property at gun shows,
Lee, Kehoe, and several others were indicted on December 12, 1997. On January 5, 1998, Lee appeared in court for arraignment and was ordered detained until trial. A superceding indictment was filed, charging Lee with racketeering in violation of
The government filed notices of intent to seek the death penalty against both Lee and Kehoe under
Lee and the government filed several pretrial motions. After a hearing in November 1998, the district court granted a motion under
At trial, the government presented numerous witnesses and circumstantial physical evidence to prove Lee‘s participation in the murders of the Mueller family. Kehoe‘s mother, Gloria, testified that Lee had confessed the murders to her. The district court also admitted statements made by Kehoe to his mother, in which he confessed the Mueller murders and other criminal activities in great detail. Gloria testified that Kehoe told her Lee had participated in the murder of the adults, but would have no part in the killing of Sarah Powell so Kehoe had done it alone. The district court also admitted hearsay statements made by Kehoe to his brother, Cheyne, confessing the three murders. The government called a number of other witnesses. They included Sean Haines, a man Lee had attempted to recruit into thе APR, James and Dalvine Wanker, both of whom knew Lee when he lived in Washington, and David Lynch, who helped Lee recruit other people into the APR. Haines testified that Lee was involved in Kehoe‘s white supremacist movement and that he had tried to recruit him into the APR several times. The Wankers corroborated Gloria Kehoe‘s testimony by recounting that Lee had told them about a trip down south in which some people had messed with him and he had done something violent to take care of them. They also testified that Lee had made statements to them about his white supremacist beliefs. Lynch stated that he had helped Lee recruit Jon Cox into the APR and that Lee had told him about taking part in militia type activities.
The circumstantial evidence adduced at trial included physical evidence connecting Kehoe‘s vehicle to the crime scene, evidence that Lee and Kehоe were in Arkansas at the time of the murders, evidence connecting Lee and Kehoe to police raid clothing worn at the time of the murders, their possession of Mueller property
Following a two month trial, on May 4, 1999 a jury convicted Lee and Kehoe of the capital murder counts, racketeering, and conspiracy to commit racketeering. The defendants were sentenced after separate penalty phases before the same jury. Kehoe‘s penalty phase proceeded first, and he was sentenced to life without release. After Kehoe‘s sentencing, the U.S. Attorney tried to withdraw the death notice in Lee‘s case, but the Department of Justice denied her request. United States v. Lee, 274 F.3d 485, 488-89 (8th Cir. 2001). Prior to Lee‘s penalty phase, the parties agreed on instructions permitting the jury to consider Lee‘s past criminal history and behavior. The jury returned a death verdict against Lee on May 14, 1999. A few days later on May 19, Lee moved for correction of the sentence and a new sentencing phase of the trial. The district court granted the motion, and the government appealed. We reversed and reinstated the death sentence. Id. at 497. Now before the court is Lee’s direct appeal from the judgment of conviction and sentence.
II.
On his direct appeal Lee raises a number of issues. He argues that his Sixth Amendment rights to confrontation and effective assistance of counsel were violated. Other issues include limitations put on his discovery rights, the sufficiency of the evidence and the indictment, the denial of his severance motion, certain jury instructions, and the сonstitutionality of the Federal Death Penalty Act.
A.
Lee argues that his Sixth Amendment confrontation rights were violated by the admission of hearsay statements made by nontestifying codefendant Kehoe to Gloria and Cheyne Kehoe. Lee contends that the statements are testimonial and therefore
The confrontation clause of the Sixth Amendment gives an accused the fundamental right to confront the witnesses against him. Crawford, 124 S. Ct. at 1359. The central function of this right is to protect individuals from the use of ex parte statements as evidence against them in a criminal trial. Id. at 1363. The confrontation clause bars the admission of testimonial statements made by witnesses outside of court, unless thе witnesses are unavailable and the defendant had a previous opportunity to cross examine them. Id. at 1369. While the Supreme Court has not attempted to give a complete listing of what may be included within the category of testimonial statements, in Crawford it specified that plea allocutions, grand jury testimony, prior trial testimony, preliminary hearing testimony, and police interrogations are testimonial statements. Id. at 1374. In contrast to these examples, casual statements to an acquaintance are not testimonial. Id. at 1364. Nor are statements to a coconspirator or business records testimonial. Id. at 1367; United States v. Reyes, 362 F.3d 536, 541 (8th Cir. 2004).
Lee argues that the statements made to Cheyne Kehoe are testimonial because they were detailed, confessional, and made after the events to a cooperating individual. He contends that these statements are not admissible as statements made to a coconspirator because Cheyne did not join the conspiracy and the statements were not made in furtherance of it. See
A statement is not hearsay and is admissible as a statement made to a coconspirator if it advances the objectives of the conspiracy and does not merely
Lee asserts that the statements to Cheyne were not coconspirator statements because Kehoe made them only to inform his brother about his activities. He cites Snider in support, a case in which hearsay statements did not come within the coconspirator category because they had been made to the testifying witness to impress hеr and she was not involved in the marijuana enterprise. 720 F.2d at 992. Here, Kehoe made the statements to Cheyne while they were traveling around the country together, selling guns and ammunition stolen from the Muellers at the time of their murders. Kehoe confessed the murders to Cheyne in great detail, admitted that he had killed Sarah Powell on his own, and showed Cheyne the police raid gear he and Lee had used in gaining access to the Mueller house. Kehoe shared this information with Cheyne to explain why he needed to dispose of the arms quickly, to enlist Cheyne‘s assistance in selling them, and to recruit Cheyne into the APR. After hearing this information, Cheyne continued to participate willingly in the sale of the stolen property. We conclude that Kehoe‘s comments to Cheyne about the Mueller murders were not testimonial in nature. They are admissible because they were coconspirator statements made in furtherance of criminal activity, namely the selling of stolen property. See Crawford, 124 S. Ct. at 1367; Reyes, 362 F.3d at 541.
Lee argues that Kehoe‘s statements to Gloria are testimonial because they were confessional, detailed, and made to an individual who allegedly later became an agent of the government. Kehoe‘s statements to Gloria do not fall into any of the categories of testimonial statements identified in Crawford, 124 S. Ct. at 1374. The circumstances surrounding them do not raise the same confrontation concerns as the
Lee contends that nontestimonial hearsay statements are only admissible after Crawford if they fall within one of the firmly rooted hearsay exceptions to the confrontation clause and that Kehoe‘s statements to Gloria do not fall within any of these exceptions. He argues that the indicia of reliability test under Ohio v. Roberts, 448 U.S. 56, 66 (1980), is no longer part of confrontation clause analysis. The government counters that nontestimonial hearsay statements are admissible if they fall within one of the hearsay exceptions in the Federal Rules of Evidence or have sufficient indicia of reliability. It also maintains that substantial additional evidence was adduced at trial, making harmless any error in the admission of Kehoe‘s statements to Gloria.
After reviewing the record, we conclude that any error in the admission of Kehoe‘s statements to Gloria was harmless beyond a reasonable doubt. There was sufficient evidence at trial to support Lee‘s conviction, even without Gloria‘s testimony about what Kehoe had told her. The evidence admitted at trial included Lee‘s confession to Gloria that he was involved in the Mueller murders; he does not challenge the admission of this testimony on appeal because it was properly admitted
B.
Lee argues that the district court abused its discretion by failing to give an accomplice instruction requiring the jury to consider whether the testimony of Gloria and Cheyne Kehoe was sufficiently corroborated. He maintains that failure to give the accomplice instruction violated his confrontation rights and that the testimony of the Kehoes was uncorroborated. He asserts that corroboration was required under Arkansas substantive law, and that it was for the jury in its deliberations to determine the sufficiency of the prosecution‘s evidence. The denial of a request for a jury instruction is reviewed for abuse of discretion, United States v. Gary, 341 F.3d 829, 834 (8th Cir. 2003), and reversal is only appropriate if the error affected the defendant‘s substantial rights. United States v. Wright, 246 F.3d 1123, 1128 (8th Cir. 2001).
Special instructions for accomplice testimony are only required “where the witness‘s testimony concerning the defendant‘s participation in the offense is uncorroborated.” United States v. Schoenfeld, 867 F.2d 1059, 1061 (8th Cir. 1989). In cases where there is corroborating evidence, further instruction to the jury to treat accomplice testimony with caution is not nеeded. United States v. Kehoe, 310 F.3d 579, 593 (8th Cir. 2002). Here, evidence at trial corroborated the testimony of Gloria
C.
Lee argues that the district court abused its discretion by denying his motion to sever his trial from Kehoe‘s. He contends that he was prejudiced by the joint trial because the district court admitted hearsay statements that were not independently admissible against him and there were spillover effects from evidence which implicated Kehoe but not him. The denial of a motion to sever is reviewed for abuse of discretion and will only be reversed if definite prejudice is shown. United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996).
Joint trials of defendants indicted together are generally conducted because they promote efficiency and the interests of justice, Zafiro v. United States, 506 U.S. 534, 538 (1993), but Rule 14 permits severance if “it appears that a defendant or the government is prejudiced by the joinder.”
Lee argues that evidence was admitted at trial which was not independently admissible against him because the hearsay statements offered by Gloria and Cheyne Kehoe violated his confrontation clause rights. As we have already discussed, any error in the admission of these statemеnts was harmless so this argument cannot prevail. Lee also maintains that it was improper not to sever the trial because there were prejudicial spillover effects, citing United States v. Baker, 98 F.3d 330, 335 (8th Cir. 1996). In contrast to Lee’s case, the defendant alleging prejudice in Baker had not been charged with conspiracy. Here, Lee cannot show similar prejudice because he was charged with participating in the same conspiracy as Kehoe, and the fact that he was not charged with all the same predicate acts does not require severance. See Dierling, 131 F.3d at 734. The district court did not abuse its discretion in denying Lee‘s severance motion because the hearsay evidence was independently admitted against him and there were no prejudicial spillover effects from the evidence.
D.
Lee argues that the evidence presented at trial was insufficient to prove that hе was involved either in the charged criminal enterprise or in the conspiracy. He contends that the government did not prove that he intentionally joined the conspiracy or that the Mueller murders were motivated by white supremacist beliefs. We review de novo the sufficiency of the evidence to support a jury verdict. United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000). The facts are reviewed in the light
To establish a conspiracy, the government must prove: (1) that there was a conspiracy; (2) that the defendants knew of the conspiracy; and (3) that the defendants intentionally joined the conspiracy. United States v. Espino, 317 F.3d 788, 792 (8th Cir. 2003). Direct or circumstantial evidence may be used to prove the conspiracy‘s existence. Id. Lee argues that there was no evidence that he joined the conspiracy, but this argument is not supported by the record. Several witnesses testified to the fact that Kehoe led a white supremacist organization and intended to build an Aryan nation in Idaho. Haines identified Lee as a member of this organization and testified that Lee tried to recruit him into it. Further, Lynch stated that he helped Lee recruit Cox into the APR and talked with Lee about his militia type activities. This testimony alone is sufficient to show that there was a conspiracy, that Lee knew about it, and that Lee chose to join it.
Three elements must be proven to show that a RICO enterprise existed: (1) a common purpose that animates the individuals associated with it; (2) an ongoing organization with members who function as a continuing unit; and (3) an ascertainable structure distinct from the conduct of a pattern of racketeering. United States v. Kragness, 830 F.2d. 842, 855 (8th Cir. 1987). Lеe argues that the government did not prove that he was part of the RICO enterprise charged in the indictment because there was no evidence that he shared the common purpose of a white supremacy movement until he was jailed in 1998 after the Mueller killings. The testimony of the Wankers indicated, however, that Lee had white supremacist beliefs prior to his pretrial detention, and Haines’ testimony demonstrated that Lee belonged to Kehoe‘s white supremacist movement and engaged in activities to further it.
E.
Lee argues that the Federal Death Penalty Act,
Lee asserts that the FDPA‘s relaxed admission standard during the penalty phase allows for introduction of less reliable evidence in violation of his due process and confrontation rights, relying on a post Ring decision, United States v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002), since reversed on appeal. See United States v. Fell, 360 F.3d 135, 143-46 (2d Cir. 2004). We agree with the Second Circuit that the FDPA standard does not impair the reliability of the evidence admissible during the penalty phase. Id. at 145-46. Rather, the admission of more rather than less evidence during the penalty phase increases reliability by providing full and complete information about the defendant and allowing for an individualized inquiry into the appropriate sentence for the offense. Id. at 143. We agree that the FDPA standard
Lee also asserts that the FDPA is unconstitutional after Ring because the Court exceeded its constitutional powers in that case by in effect creating a new common law criminal offense with elements never considered or enacted into law by Congress. The statute involved in Ring required aggravating factors for the death penalty to be imposed, and the Supreme Court considered them to be functional equivalents of the elements of an offense. Ring, 536 U.S. at 609. Aggravating factors must therefore be found beyond a reasonable doubt before the death penalty may be imposed. Id. Lee argues that by holding statutory aggravating factors tо be the functional equivalents of elements of the offense, the Supreme Court added elements to the offense, thus creating a new common law crime. He contends that since the FDPA also requires proof of aggravating factors it must be interpreted after Ring to create new common law offenses. We reject Lee’s argument because in Ring the Court did not add elements to the statutory offense. Rather it acknowledged that for a maximum penalty to be imposed, the legislature had required findings of aggravating factors in addition to findings on the elements of the offense. Id.
F.
Lee argues that the district court erred because it recognized a potential juror‘s bias in favor of the death penalty, but it failed to strike that juror and prejudiced Lee by forcing him to use a preemptory strike to eliminate the juror. We review district court voir dire decisions for abuse of discretion. United States v. Nelson, 347 F.3d 701, 706 (8th Cir. 2003). It is well settled that a defendant is not deprived of any
G.
Lee raises several issues on appeal that were not preserved at trial, and we review each of these issues for plain error.
1.
Lee argues that his confrontation rights were violated when the district court allowed his counsel to stipulate to the receipt of evidence at his penalty phase which the jury had already heard and seen during Kehоe‘s penalty phase.4 He contends that he retains confrontation rights during the penalty phase, see Ring, 536 U.S. at 584, and that personal confrontation rights cannot be waived by counsel. Lee concedes that the standard of review is plain error since he raised no objection at trial. He asserts nevertheless that the stipulation infringed on his personal confrontation rights so he need not show prejudice. The government does not contest that Lee has confrontation rights during the penalty phase, but argues that he has not shown plain error and points out that the same jury had already been exposed to all of this evidence.
Lee argues that under Clemmons v. Delo, 124 F.3d 944, 956 (8th Cir. 1997), his counsel could not waive his confrontation rights by stipulating to the evidence presented at Kehoe‘s penalty phase. He says confrontation rights are personal, fundamental, and cannot be waived by counsel. In Clemmons, the court held that the defendant‘s confrontation rights were violated by his lawyer’s consent to the admission of an accuser‘s deposition because the defendant had been unaware of the taking of the deposition, did not know that the evidence would be admitted until trial, and never consented to its admission. Id. at 952, 955-56. This case differs from Clemmons, however, for Lee knew about the stipulation before his penalty phase started and had the opportunity to object to his counsel‘s waiver of his confrontatiоn rights before the court.
This case is more like Loggins v. Frey, 786 F.2d at 368, where we recognized a valid waiver of a defendant‘s confrontation rights. In Loggins, we held that the defense counsel‘s stipulation at trial to the admission of the victim‘s hearsay testimony did not violate the defendant‘s confrontation rights because he had acquiesced in the stipulation and had personally waived his confrontation rights by not objecting at
2.
Lee argues that the district court erred in failing to dismiss the indictment against him because it did not allege every element of a capital offense by including the aggrаvating factors necessary to impose a death sentence. He contends that the indictment did not include the mens rea or statutory aggravating factors required. See
The Fifth and Sixth Amendments require that “any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond а reasonable doubt.” Jones v. United States, 526 U.S. 227, 243 n. 6 (1999). If the constitutional sufficiency of the indictment is first raised on appeal, then plain error applies. Cotton, 535 U.S. at 631.
Lee relies on a recently vacated decision of our court, United States v. Allen, 357 F.3d 745, 747 (8th Cir. 2004), reh‘g en banc granted May 11, 2004, for the proposition that an indictment violates the Fifth Amendment if it does not allege all the facts necessary for imposition of the punishment, including in a capital case at least one statutory aggravating factor under
Even if the indictment was defective, Lee cannot show plain error because it did not seriously affect the fairness and integrity of the judicial proceedings. Cotton, 535 U.S. at 633. The proceedings were not tainted because Lee received an amended death penalty notice on October 16, 1998. This case thus does not raise any of the notice problems generally associated with a defective indictment. Furthermore, the petit jury‘s findings confirmed the soundness of the judicial proceedings and rendered harmless any conceivable error in the charging decision. Id.; see also United States v. Mechanik, 475 U.S. 66 (1986). The petit jury in Lee’s case found that the government had proved the statutory aggravating factors of murder for pecuniary gain and intentional killing of more than one person in a single criminal episode. The jury also found that the nonstatutory aggravating factor of future dangerousness had been proved. Based on these findings, the jury unanimously voted to sentence Lee to death, and this indicates thаt initiation of the death penalty prosecution was not unfounded. Lee has not shown plain error.
3.
Lee argues that the district court violated his due process rights and
Section 3432 provides that a person charged with a capital offense “shall at least three entire days before commencement of trial be furnished with a copy of . . . the witnesses to be produced on the trial for proving the indictment.”
Lee contends that he can show plain error because the disclosure of Dee and James Wanker as witnesses less than 48 hours before their appearance prevented adequate trial preparation by his counsel. As evidence of inadequate preparation, Lee points to the fact that his counsel did not impeach these witnesses even though their
4.
Lee argues that his discovery rights were violated when the district court improperly excused the government from cоmplying with
Under
5.
Lee argues that his death sentence was arbitrarily imposed in violation of
Lee argues that
H.
Lee argues that his Sixth Amendment right to assistance of counsel was violated by his trial attorneys because lead defense attorney, Jack Lassiter, had a
When Kehoe‘s counsel learned about Coleman’s departure around the same time, he raised the matter before the district court out of concern for the appearance of impropriety. The district court held a hearing at which Lee contends Lassiter testified adversely to his interests by supporting Coleman‘s employment interest. Lee also argues that Lassiter failed to join Kehoe‘s motion to disqualify the U.S. Attorney‘s office because of his conflict. At the hearing Lassiter testified that clients had not been informed of Coleman‘s departure until after her background check had been completed and explained that he had “full confidence in her integrity.” He also stated that Coleman continued to organize witness statement files to prepare for trial after she had formally accepted the job in the prosecutor‘s office but that he did not feel that he needed to tell her to stop. He admitted that he had not discussed the situation with Lee, explaining that he had not had the opportunity. Another member of the defense team, Cathleen Compton, testified that she had grave concerns about the situation and that her concerns were shared by Lee. Lee contends that Lassiter testified contrary to his best interests, that the district court should have held a colloquy with Lee about the conflict, and that his interests should have been protected by the appointment of new counsel for the duration of the heаring.
A defendant‘s claims of ineffective assistanсe of counsel are generally not cognizable on direct appeal. United States v. Triplett, 104 F.3d 1074, 1083 (8th Cir. 1997). They may be heard only if a miscarriage of justice would otherwise result, see United States v. Wood, 270 F.3d 728, 730 (8th Cir. 2001), or if the district court has developed a record on the issues. See Triplett, 104 F.3d at 1083. Here, Lee argues that his ineffective assistance claims should be reviewed upon direct appeal because all the relevant facts are available, but he does not dispute that the district court has not developed a record on the issues and he does not argue that a miscarriage of justice would result if the claims were not reviewed now. Lee‘s ineffective assistance claims are premature and should be raised collaterally through a
III.
In sum, we conclude that Lee‘s confrontation rights were not violated by the testimony of Gloria and Cheyne Kehoe or by the district court‘s jury instructions, that the distriсt court did not abuse its discretion by denying Lee‘s motion to sever, and that there was sufficient evidence presented at trial to support his conviction. We
Accordingly, we affirm Lee‘s conviction and sentence but dismiss without prejudice his ineffective assistance claims as premature.
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