UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES HARRY RAND, also known as Harry Rand, Defendant-Appellant.
No. 06-2374
United States Court of Appeals For the Seventh Circuit
ARGUED FEBRUARY 7, 2007—DECIDED APRIL 6, 2007
Before FLAUM, ROVNER, and EVANS, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 CR 1069—Joan B. Gottschall, Judge.
Rand, unfortunately, was a friend of a fellow named Joseph Kalady. And Kalady was in hot water. To extricate himself, he hatched a plan he thought would allow him escape from both the heat and the country. Kalady recruited Rand to help him pull it off. Nothing but trouble followed: on this appeal, Rand challenges his conviction for violating
In the fall of 2001, Kalady was arrested for executing an identity fraud scheme in which he counterfeited U.S. birth certificates to obtain passports for illegal aliens. He was released on bond but confined to his home and monitored by an electronic bracelet around his ankle. Under the terms of his release, he had to remain within 500 feet of his residence unless he had permission from a Pretrial Services officer to go beyond that distance. Kalady‘s arraignment was delayed due to problems with his health, but it was ultimately scheduled for December 6, 2001.
Kalady was a huge man, weighing in at 450 pounds, and he suffered serious health problems as a result of his weight. Like most all defendants facing federal criminal charges, he did not want to go to prison. So in November 2001, as the date for his arraignment drew close, he told his brother, Michael, that he wanted to fake his own death so he could get out of his predicament. Kalady‘s plan, ultimately, was to kill another person and use the corpse as a double for himself.1
Kalady discussed his plan with Rand, who had previously lived with him. During the discussion, Kalady told Rand to “get a homeless guy, kill him, and pretend that he‘s me.” Kalady also asked Rand to find a homeless man who looked like Kalady, someone who visited “soup
Kalady also discussed his plan with Michael, asking him to do several things. First, Kalady said that if Michael came to his residence and found a dead body in his chair, he should tell everyone that the corpse was Joseph Kalady. Next, Kalady asked Michael to call the police, paramedics, and funeral directors to report his discovery of the dead body. Finally, on November 27, 2001, Kalady asked Michael to come to his house and serve as a witness on documents provided by the Cremation Society of Illinois. The execution of these documents, with a witness, ensured that the body would be cremated after it was removed from Kalady‘s house. This was a crucial part of Kalady‘s plan because if the body found in his chair was cremated, “it would become [Kalady] and they wouldn‘t be able to send him back to prison.”
On December 1, 2001, 5 days before the scheduled arraignment, Rand brought a fellow named William White to Kalady‘s house. Kalady told White that he needed a body double because the FBI was watching him. He asked White if, at a later time, he would be willing to put on Kalady‘s clothes and sit in his chair for a couple of hours so Kalady could leave without alerting federal authorities. White agreed, and Kalady then gave White and Rand $150 in cash. After White and Rand left the apartment, Kalady told Michael that he thought his plan “would work” and that White‘s body would be a good “replace[ment]” for Kalady‘s. The next day, Michael went to Kalady‘s house and found White dead, wearing Kalady‘s clothing and sitting in Kalady‘s oversized recliner. Rand was seen leaving Kalady‘s residence around that time.
After Rand was arrested, he admitted that Kalady wanted somebody to take his place and sit in his chair while Kalady left the house. Rand also admitted Kalady told him to get a homeless guy, kill him, and have that guy take Kalady‘s place.
Rand was charged and went to trial on two counts. Count 1 charged him with aiding and abetting Kalady in the murder of White, under
Whoever kills . . . another person, with intent to . . . prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of . . . release pending judicial proceedings; shall be punished [according to law].
Count 2 charged Rand with conspiring with Kalady and others “to commit an offense against the United States; namely, the failure by defendant Joseph Kalady to appear . . . for arraignment . . . as required by the conditions of Joseph Kalady‘s release order, in violation of
The government‘s theory of the case was that Kalady, aided and abetted by Rand, killed White intending to
Rand also argues that even if Kalady‘s scheme is seen as an effort to prevent the fact of his flight from being known,
Kalady clearly murdered White and, viewing the evidence in the light most favorable to the government, Rand clearly aided and abetted that nefarious act. But did Rand violate
Rand argues that the statute, on these facts, only prohibits the killing of victims, witnesses, and informants, and because White does not fall into any of these categories, his killing does not fit under the statute. This argument, we think, ignores the plain language of the statute.
We repeat, this time with emphasis, the text of the statute:
(a)(1) Whoever kills or attempts to kill another person, with intent to—
(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of . . . release pending judicial proceedings;
with the intent to prevent the communication by a United States Pretrial Services Officer to a law enforcement officer and judge of the United States of information relating to the commission and possible commission of a Federal offense and a violation of defendant Joseph Kalady‘s conditions of release pending judicial proceedings, which killing was a murder in the first degree, as defined in
Title 18, United States Code, Section 1111 .
We believe that a plain reading of
Rand‘s two principal contentions are that there must be some relationship between the person killed and the person whose “communication” is prevented, and that the statute‘s title—Tampering with a witness, victim, or an informant—cabins its scope. Both claims must be rejected. Because the plain language of the statute—killing “another person” to prevent a communication by “any person“—is not limited, Rand turns to a variant of the old legislative history argument to support his claim. He says: “While extrinsic material may not modify an unambiguous statute, it should be considered in determining the meaning of the statute.” We cannot embrace this notion. When a statute is clear, any consideration of
Rand claims that the title of the statute, again “Tampering with a witness, victim or an informant,” reveals that its sole purpose is preventing harm to witnesses, victims, and informants. However, while a statute‘s title can inform the meaning of ambiguous text, it is well-settled that it does not “limit the plain meaning of the text.” See United States v. Krilich, 159 F.3d 1020, 1028 (7th Cir. 1998), citing Pennsylvania Dep‘t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998); see also Lyons v. Georgia-Pacific Corp. Salaried Employees, 221 F.3d 1235, 1246 (11th Cir. 2000) (“[R]eliance upon headings to determine the meaning of a statute is not a favored method of statutory construction.“).
Our view is consistent with the position taken by the Eleventh Circuit in United States v. Veal, 153 F.3d 1233 (1998). In Veal, three police officers were charged under
The Veal court held that it did not need to reach the statute‘s legislative history because “there [was] no ambiguity in [§ 1512(b)(3)‘s] ‘another person,’ which is easily and commonly understood to mean any person, regardless of whether he possessed knowledge of the commission or possible commission of a federal crime from being an eyewitness or investigating official.” Id., at 1245 (emphasis in original); see also United States v. Diaz, 176 F.3d 52, 91 (2d Cir. 1999) (relying on an opinion analyzing
Rand cites United States v. Arocho, 305 F.3d 627, 639 (7th Cir. 2002), and United States v. LaShay, 417 F.3d 715, 718 (7th Cir. 2005), for the contention that a person killed under a
In Murphy, one of the defendants—a woman named Baker—confronted a confidential informant, but she did not know that the person held that status. We agreed in that case that the jury could not convict Baker when she did not know the person she confronted was an informant. But our reasoning was very particular. Since Baker did not know the person she confronted was an informant, she lacked the required intent under
Rand‘s argument that
Rand‘s challenge to the jury instructions regarding the elements of the charge against him is an offshoot of his contention about the limited scope of
(3) The punishment for an offense under this subsection is—
(A) in the case of murder (as defined in section 1111 [
18 USCS § 1111 ], the death penalty or imprisonment for life, and in the case of any other killing, the punishment provided in section 1112 [18 USCS § 1112 ];(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 20 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 10 years.
Second, the government had to prove that White was killed in order to prevent a communication by “any person” to a law enforcement official or judge. This element is reflected in instruction 18 as well (“the government must prove . . . that Joseph Kalady killed William White with the intent to prevent the communication by a United States Pretrial Services Officer to a law enforcement official and judge of the United States of information relating to the commission and possible commission of a Federal Offense and a violation of Joseph Kalady‘s conditions of release pending judicial proceedings.“).
Lastly, for sentencing purposes, the government had to prove that White‘s killing was “murder,” as defined in
Admittedly, the charge in this case and the instructions formulated and given by the experienced district court judge (the Honorable Joan B. Gottschall) are not run-of-the-mill. And that‘s certainly not unusual in a case that was anything but run-of-the-mill. We think these instructions are clear and did not, as Rand colorfully claims, toss the jury into an “instructional briar patch.”
Rand, of course, would have preferred his proposed elements instruction:
[T]hat defendant intentionally “aided and abetted” Joseph Kalady in killing William White and that this
was done with the intent to prevent William White from communicating information as described in the previous (SECOND) paragraph.
This proposed instruction would have been wrong on the law and would certainly have confused and misled the jury. When all is said and done, we think the instructions as given by Judge Gottschall, when viewed as a whole, were error-free on the elements of the charge against Rand in count 1.
For these reasons, the judgment of the district court is AFFIRMED.
ROVNER, Circuit Judge, dissenting. When James Rand agreed to find a body double and victim for Joseph Kalady‘s incomprehensible scheme, he undoubtedly aided and abetted Kalady in the murder of William White. Such a prosecution would have been an easy one for the state prosecutors. Kalady had told Rand to “get a homeless guy, kill him, and pretend he‘s me.” Rand dutifully brought the homeless man to Kalady, and that man, White, was then killed as planned and placed in a chair, wearing Kalady‘s ill-fitting clothing, to stand in for Kalady. The prosecutors, however, chose not to take this route. Instead they sought to convict Rand under a witness tampering statute which states:
Whoever kills or attempts to kill another person, with intent to—
* * *
(C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;
shall be punished as provided in paragraph (3).
The government‘s theory is that Kalady killed White intending to prevent a pretrial services officer (PSO) from communicating to the court that Kalady had violated his conditions of release by fleeing from home confinement. If true, then Rand aided and abetted Kalady in the commission of that offense. Such a theory would cause any tribunal to raise a brow.
We need not turn to the purpose of the statute, however, to see why Kalady‘s (and thus Rand‘s) crime does not fit. The statute requires that a defendant kill with the intent to prevent communication of, in this case, the violation of a condition of release pending a judicial proceeding. Kalady, however, never intended to prevent the PSO from communicating anything; he hoped to manipulate the PSO into communicating information that was not correct—i.e. that Kalady had died, rather than that he had fled. The term “prevent,” on its face, implies the use of an act that disables a person from communicating or one that is so coercive as to effectively disable that person from communicating. Feeding false information to a PSO in the hopes that he will communicate the misinfor-
If we had any doubt whatsoever about the limitations of the word “prevent” in this context, the remainder of the statute makes it clear.
Of course, the record contains no evidence of Kalady‘s intent regarding his efforts to thwart communication. For this reason, I particularly am troubled by the majority‘s naked assertion that “Kalady had the requisite intent required under the statute.” Ante at 9. Clearly, Kalady‘s intent was to fake his death, escape an inevitable prison
The majority‘s unsupported assertion of intent is problematic because the statute at issue,
The fact that Kalady intended that no one find out about his scheme hardly creates the specific intent to prevent communication required by this statute. Most criminals (and not just the particularly clever ones as this case demonstrates) intend to keep their crimes a secret from law enforcement officers and judges. Consequently, as they plan and commit their crimes they tend to take steps to hinder witnesses from communicating information relating to their crime to law enforcement and judges. Almost any action that a defendant takes to divert suspicion from himself or to throw pursuers off his scent—using an alias, wearing a disguise, or pointing the finger at someone else—could be characterized as an effort to “prevent” someone from communicating the truth of criminal culpability. But to transform these steps, which are part and parcel of any crime, into crimes of their own would expand the scope of this witness tampering statute in a manner not contemplated by Congress.
Rand‘s action simply do not fit within the plain language of this statute even with a shoehorn. As Cinderella‘s wicked stepsisters taught us, no good can come of stuffing a foot into an ill-fitting shoe. Particularly where, as here, there were plenty of proverbial shoes just right for Rand‘s foot.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—4-6-07
Notes
Victim & Witness Protection Act of 1982, S. Rep. No. 97-532, at 18 (1982).[T]he obstruction of justice statute is an outgrowth of the Congressional recognition of the variety of corrupt methods by which the proper administration of justice may be impeded or thwarted, a variety limited only by the imagination of the criminally inclined. In the Committee‘s view, this observation leads to the conclusion that the purpose of preventing an obstruction or miscarriage of justice cannot be fully carried out by a simple enumeration of the commonly prosecuted obstruction offenses. There must also be protection against the rare type of conduct that is the product of the inventive criminal mind and which also thwarts justice.