Witness Retaliation Conviction Affirmed
United States v. Wardell, ___ F.3d ___ 2009 WL 2998939 (10th Cir 2009)
Defendant convicted, along with co-defendants, of retaliation and conspiracy to retaliate against a witness (witness was beaten in a holding cell) who had earlier testified against defendant in tax fraud case. Witness was beaten by two others who had not been involved in tax case. Defendant did not participate (nor did a fourth co-defendant, Pursley, who was, like defendant, charged and convicted in the tax case).
1. Sufficient evidence of conspiracy and interdependence: defendant had earlier written two letters to witness that witness interpreted as warnings not to testify--evidence of a motive to conspire to retaliate, which increased after witness testified. The two beaters were not involved in tax case and had no motive, therefore a jury could infer they conspired with those who had a motive to retaliate. Co-defendant Pursley’s attorney writted the two beaters to court to testify in the tax case, but they never testified. It could be viewed as a ruse to get them in contact with the witness in a holding cell so they could beat him. Pursley and defendant were close friends. On the ride to the courthouse, another prisoner saw defendant, Pursley, and one of the two beaters whispering to each other the entire one hour trip–Pursley identified the beater as “a friend.” During the beating, one of the beaters said to witness that he knew witness had testified against Pursley. During the beating defendant, who was also in the cell, made a lot of noise to cover the sound of the beating. Witness testified defendant called out after the attack that he deserved what he got.
2. No abuse of discretion (and no constitutional violation) in making defendant wear stun belt at trial: There is a danger of prejudice if a defendant is made to wear a visible stun belt. Here, however, court made required individualized assessment of safety necessity, and adequately minimized visibility of belt. Court rejects under plain error standard defendant’s argument that psychological impact of stun belt being possibly activated affected his 6th Amendment rights.
3. No abuse of discretion denying severance motion: Law of the case applies to this issue rejected by Court in Pursley’s appeal. No evidentiary and culpability disparities between defendant and Pursley.
4. Sentencing: 8-=level upward guideline adjustment for obstructing justice with injury properly applied–the conviction necessarily required a finding of facts required for the adjustment. No error in applying organizer or leader upward adjustment. There was evidence of defendant’s organizing, even if Pursley was more responsible for organizing the assault. No need to review evidence of leadership.
5. Defendant’s subpoena requests and violation of Rule 17's ex parte provision. District court asked defendant in the presence of the government (instead of in a private ex parte manner) about the need for witnesses defendant wanted to subpoena. Court states that the ex parte procedure is required, but it ruled in Pursley’s case that he had waived that protection by volunteering information in front of the government and at any rate by not objecting. While defendant largely operated in tandem with Pursley at trial, Court could not say he waived the protection. But it was an untimely objection and still reviewed under the plain error standard. Because he could not show how his substantial rights were prejudiced, he cannot prevail in spite of the error.
Defendant convicted, along with co-defendants, of retaliation and conspiracy to retaliate against a witness (witness was beaten in a holding cell) who had earlier testified against defendant in tax fraud case. Witness was beaten by two others who had not been involved in tax case. Defendant did not participate (nor did a fourth co-defendant, Pursley, who was, like defendant, charged and convicted in the tax case).
1. Sufficient evidence of conspiracy and interdependence: defendant had earlier written two letters to witness that witness interpreted as warnings not to testify--evidence of a motive to conspire to retaliate, which increased after witness testified. The two beaters were not involved in tax case and had no motive, therefore a jury could infer they conspired with those who had a motive to retaliate. Co-defendant Pursley’s attorney writted the two beaters to court to testify in the tax case, but they never testified. It could be viewed as a ruse to get them in contact with the witness in a holding cell so they could beat him. Pursley and defendant were close friends. On the ride to the courthouse, another prisoner saw defendant, Pursley, and one of the two beaters whispering to each other the entire one hour trip–Pursley identified the beater as “a friend.” During the beating, one of the beaters said to witness that he knew witness had testified against Pursley. During the beating defendant, who was also in the cell, made a lot of noise to cover the sound of the beating. Witness testified defendant called out after the attack that he deserved what he got.
2. No abuse of discretion (and no constitutional violation) in making defendant wear stun belt at trial: There is a danger of prejudice if a defendant is made to wear a visible stun belt. Here, however, court made required individualized assessment of safety necessity, and adequately minimized visibility of belt. Court rejects under plain error standard defendant’s argument that psychological impact of stun belt being possibly activated affected his 6th Amendment rights.
3. No abuse of discretion denying severance motion: Law of the case applies to this issue rejected by Court in Pursley’s appeal. No evidentiary and culpability disparities between defendant and Pursley.
4. Sentencing: 8-=level upward guideline adjustment for obstructing justice with injury properly applied–the conviction necessarily required a finding of facts required for the adjustment. No error in applying organizer or leader upward adjustment. There was evidence of defendant’s organizing, even if Pursley was more responsible for organizing the assault. No need to review evidence of leadership.
5. Defendant’s subpoena requests and violation of Rule 17's ex parte provision. District court asked defendant in the presence of the government (instead of in a private ex parte manner) about the need for witnesses defendant wanted to subpoena. Court states that the ex parte procedure is required, but it ruled in Pursley’s case that he had waived that protection by volunteering information in front of the government and at any rate by not objecting. While defendant largely operated in tandem with Pursley at trial, Court could not say he waived the protection. But it was an untimely objection and still reviewed under the plain error standard. Because he could not show how his substantial rights were prejudiced, he cannot prevail in spite of the error.
posted by Anonymous at 8:55 AM
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