United States v. Lampley ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 20 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 96-7074
97-7016
WILLIE RAY LAMPLEY, a/k/a
Ray Lampley,
Defendant - Appellant,
and
CECILIA LAMPLEY; LARRY WAYNE
CROW; and JOHN DARE BAIRD, a/k/a
J. D. Baird,
Defendants.
____________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 96-7075
97-7010
CECILIA LAMPLEY,
Defendant - Appellant,
and
WILLIE RAY LAMPLEY, a/k/a Ray
Lampley; LARRY WAYNE CROW; and
JOHN DARE BAIRD, a/k/a J. D. Baird,
Defendants.
____________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 96-7077
JOHN DARE BAIRD, a/k/a J. D. Baird,
Defendant - Appellant.
__________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 95-CR-63-S)
_________________________
John C. “Jay” Williams III, Muskogee, Oklahoma, for Defendant-Appellant Willie Ray
Lampley in No. 96-7074.
(Willie Ray Lampley, pro se, submitted on the brief in No. 97-7016.)
Mark Green, Muskogee, Oklahoma, for Defendant-Appellant Cecilia Lampley in No.
96-7075.
(Cecilia Lampley, Fort Worth, Texas, pro se, submitted on the brief in No. 97-7010.)
Gene V. Primomo (James G. Wilcoxen of Wilcoxen, Wilcoxen & Primomo with him on
the brief), Muskogee, Oklahoma, for Defendant-Appellant John Dare Baird in No.
96-7077.
Douglas Adam Horn, Assistant United States Attorney (John Raley, United States
Attorney, and D. Michael Littlefield, Assistant United States Attorney, with him on the
briefs), Eastern District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee
United States of America.
_________________________
2
Before SEYMOUR, Chief Judge, McKAY, and MURPHY, Circuit Judges.
_________________________
McKAY, Circuit Judge.
_________________________
This opinion consolidates for the purpose of disposition the appeals of
three related cases. 1 Defendants Mr. Willie Ray Lampley; his wife, Mrs. Cecilia
Lampley; and Mr. John Dare Baird were convicted of conspiring to knowingly
make and possess a destructive device and maliciously damage and destroy, by
means of fire or explosives material, a building and other real and personal
property used in interstate commerce and used in an activity affecting interstate
commerce in violation of 18 U.S.C. §§ 2, 371, and 844(i), and 26 U.S.C. §§ 5822,
5841, 5845, 5861(d) & (f), and 5871. Mr. Lampley and Mr. Baird also were
convicted of the use or carrying of a firearm during and in relation to the
commission of a crime of violence, the predicate offense of conspiracy, pursuant
to 18 U.S.C. § 924(c)(1). Mr. Lampley also was convicted of solicitation of a
government informant to commit a crime of violence against the United States, in
violation of 18 U.S.C. §§ 2, 373, and 844(i). These convictions stemmed from
1
Mr. Lampley appeals his convictions, Nos. 96-7074 and 97-7016; Mrs. Lampley
appeals her conviction, Nos. 96-7075 and 97-7010; and Mr. Baird appeals his
convictions, No. 96-7077. Defendants were tried together in district court and argued
their appeals in this court on the same day.
3
Defendants’ endeavors to build and possess an explosive device to damage or
destroy the Anti-Defamation League building in Houston, Texas, and the Southern
Poverty Law Center in Montgomery, Alabama. These activities took place
between August and November 1995. On appeal, each defendant alleges
numerous grounds for reversal. We address each allegation in turn, but
consolidate those arguments common to the defendants. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
I.
Defendants Mr. Lampley, Mrs. Lampley, and Mr. Baird submit that their
Sixth Amendment right to a fair trial by an impartial jury was unduly prejudiced
by the influence of the April 19, 1995 bombing of the Alfred P. Murrah Federal
Building in Oklahoma City, Oklahoma. The details of their claim are: The trial
coincided with the one-year anniversary of the Oklahoma City bombing; the
corresponding presence of security forces was excessive and media publicity
pervasive; a memorial wreath was placed on the courthouse door, and a memorial
sign was in the window of a Federal Protective Service vehicle parked in front of
the courthouse; and statements relating to the Oklahoma City bombing were
admitted into evidence.
4
A. There is no dispute that Defendants were tried during the general
anniversary period of the Oklahoma City bombing. 2 However, Defendants failed
to make any objection to the timing of the trial on the basis that it would coincide
with the one-year anniversary of the Oklahoma City bombing. 3 There is no
evidence in the record that Defendants made any request for a change of venue or
any request for a delay due to this circumstance. We, therefore, apply a plain
error analysis. Fed. R. Crim. P. 52(b); United States v. Atkinson, 297 U.S. 157,
160 (1936). The plain error rule requires there be “an ‘error,’ that is ‘plain,’ and
that ‘affect[s] [the defendant’s] substantial rights.’” United States v. Olano, 507
U.S. 725, 732 (1993) (quoting Fed. R. Crim. P. 52(b)). In Johnson v. United
States, ___ U.S. ___, 117 S. Ct. 1544 (1997), the Supreme Court clarified the
analysis by confirming that a court should invoke its remedial discretion to notice
a forfeited error only if that error “‘seriously affect[s] the fairness, integrity or
2
The trial began on April 1, 1996, and ended on April 24, 1996.
3
Like many trials, the timing of this trial was an ever-changing entity. The
original jury trial date was set for January 3, 1996. Defendants moved for, and were
granted, a continuance on December 12, 1995, so they could properly deal with the large
volume of discovery documents in preparation for trial. On December 22, 1995, the
district court reset the jury trial for January 22, 1996. On January 18, 1996, the court
ordered that the jury trial date of January 22, 1996, be stricken, over objections by
Defendants. The government made a motion on February 12, 1996, for an order to set the
jury trial for March 4, 1996. The court denied this motion, explaining that a March 4,
1996 trial setting would not be feasible due to the need for additional time to implement
and coordinate increased safety and security measures. Instead, the jury trial was set for
April 1, 1996.
5
public reputation of judicial proceedings.’” Id. at 1550 (citation omitted)
(quoting Atkinson, 297 U.S. at 160).
Defendants’ trial began on April 1, 1996, in the Eastern District of
Oklahoma. On April 12, 1996, the trial was recessed until April 22, 1996. On
April 24, 1996, a jury deliberated and returned guilty verdicts on all counts for
each defendant. There is no evidence in the record that the government had any
control over the timing of this trial or that the district court had any intent to hold
Defendants’ trial during the anniversary of the Oklahoma City bombing. In fact,
the record suggests the contrary. The government made a motion on February 12,
1996, for an order to set the jury trial for March 4, 1996. The district court
denied this motion for the reason that it needed “additional time to implement and
coordinate increased safety and security measures.” R., Vol. I, Exh. 189.
Additionally, on April 1, 1996, the district court told the lawyers, defendants, and
potential jury that it hoped to shorten the expected duration of the trial to two
weeks by working longer days and taking shorter recesses. A two-week trial
would have ended around April 12, 1996. There is insufficient evidence to
suggest that the trial’s timing was anything other than coincidental. Defendants
have not cited facts in the record sufficient to show either that their substantial
rights were prejudiced or that the fairness, integrity, or reputation of the judicial
6
proceeding was seriously affected. We conclude that their claims do not rise to
the level of plain error.
However, while we have disposed of the issue of intent, the critical issue is
the effect of the Oklahoma City bombing on the jury. The district court is
responsible for guaranteeing that the jury is fair and impartial. See Frazier v.
United States, 335 U.S. 497, 511 (1948). It is a well-established principle that
“one accused of a crime is entitled to have his guilt or innocence determined
solely on the basis of the evidence introduced at trial, and not on grounds of
official suspicion . . . or other circumstances not adduced as proof at trial.”
Taylor v. Kentucky, 436 U.S. 478, 485 (1978). Where Defendants raised in the
district court specific objections to the effect of the Oklahoma City bombing, we
will review that court’s constitutional findings de novo. United States v. Al-
Smadi, 15 F.3d 153, 154 (10th Cir. 1994) (citing Nieto v. Sullivan, 879 F.2d 743,
749-54 (10th Cir.)), cert. denied, 493 U.S. 957 (1989).
B. Defendants contend that the security measures and number of officers
present in the courtroom and courthouse during the trial were excessive and
prejudiced their right to a fair trial in violation of Holbrook v. Flynn, 475 U.S.
560 (1986). This specific allegation was raised in the district court, and we
therefore review de novo. In Holbrook, the Supreme Court defined the standard
7
by which security presence in the courtroom may be measured in relation to a
defendant’s constitutional right to a fair trial. Holbrook states:
All a . . . court may do . . . is look at the scene presented to jurors
and determine whether what they saw was so inherently prejudicial as
to pose an unacceptable threat to defendant's right to a fair trial; if
the challenged practice is not found inherently prejudicial and if the
defendant fails to show actual prejudice, the inquiry is over.
Id. at 572. The Court determined that “the conspicuous, or at least noticeable,
deployment of security personnel in a courtroom during trial” is not an inherently
prejudicial practice and does not violate the fundamental principles of the
criminal justice system. Holbrook, 475 U.S. at 568-69. The Court noted that
guards have become commonplace in most public places “so long as their
numbers or weaponry do not suggest particular official concern or alarm.” Id. at
569; see Hopkinson v. Shillinger, 866 F.2d 1185, 1218 (10th Cir. 1989) (security
measures including armed and unarmed guards and magnetometer were not so
inherently prejudicial as to pose unacceptable threat to defendant’s right to fair
trial), cert. denied, 497 U.S. 1010 (1990).
The facts of this case do not support a claim that the Holbrook standard
was violated. In recognizing the presence of security measures, the trial judge
specifically stated that “certain precautions . . . have to be taken to protect the
people who work [in the courthouse] and to protect [the lawyers].” R., Vol. XV
at 542. The judge noted, to clarify the record, that there were not “that many
8
Marshals up here in front of the rail,” and that he could distinguish the marshals
in the back of the courtroom from spectators or press only because he had met
them. Id. Unlike the state troopers involved in Holbrook, the marshals in the
back of the courtroom were in plain clothes and unarmed. The judge found that
the scene presented to the jurors was not so inherently prejudicial as to impair
Defendants’ right to a fair trial. This finding is not erroneous. Moreover,
Defendants do not cite facts in the record that are sufficient to show actual
prejudice. We will not presume prejudice where the record does not support a
claim of inherently prejudicial activity or incident.
C. Defendants also contend that the excessive publicity surrounding the
anniversary of the Oklahoma City bombing denied them a fair trial. As noted
above, Defendants failed to object or move for a change of venue prior to the
trial’s commencement, despite their knowledge that the trial would last
approximately three weeks and would coincide with the anniversary of the
Oklahoma City bombing. However, we review de novo because Defendants
raised the issue affecting their constitutional rights on April 22, after the trial’s
recess.
The facts in the record do not support Defendants’ suggestion that the jury
did anything other than follow the court’s admonitions to not discuss the case
9
with anyone, to refrain from viewing any publication or broadcast relating to the
case, and to remain impartial. According to the record, after the trial’s recess the
district court made a general query of the jurors concerning any influence that
might have affected their impartiality. 4 The record shows that the jurors did not
express any doubt about their ability to remain impartial or any concern about the
publicity surrounding this case or the Oklahoma City bombing anniversary.
Additionally, the record does not suggest that the district court improperly relied
on the fundamental principle that the jurors would abide by the court’s
instructions and admonitions and remain impartial. See Richardson v. Marsh, 481
U.S. 200, 206 (1987) (endorsing “the almost invariable assumption of the law that
jurors follow instructions”); Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)
(“The Court presumes that jurors . . . attend closely . . . , strive to understand, . .
. and follow the [trial court’s] instructions” in a criminal case.). The trial court
did not err in finding that the media coverage of this case and the Oklahoma City
bombing anniversary did not deny Defendants a fair trial.
D. Defendants further argue that a memorial wreath on the courthouse door
on April 22, 1996 (undoubtably seen by the jurors), and a memorial sign in the
window of a Federal Protective Security vehicle parked in front of the courthouse
4
See infra Part I.D.
10
on April 22, 1996 (probably visible to the jurors), unfairly prejudiced the jury and
denied them a fair trial. 5 When defense counsel brought the existence of the
wreath and the sign to the court’s attention, the judge instructed the Assistant
United States Attorney, “as an officer of this Court, . . . to see that there aren’t
any subtle harpoons out there that you can help prevent.” R., Vol. XXIII at 2524.
In effect, the judge immediately directed that any possibly offending items be
removed from the realm of the trial.
The record also reflects a discussion between the trial judge and counsel
about the form of inquiry to the jurors concerning these items. The judge faced
the dilemma of how to make a proper inquiry without further drawing attention to
the Oklahoma City bombing. He opted to make a general inquiry. He asked the
jurors if they had seen, heard, or experienced anything that now would prevent
them from being fair and impartial, either to the defendants or the government.
The jurors did not indicate that their impartiality had been tainted. Additionally,
the record shows that the judge allowed the defense and prosecution to voir dire
the jurors during jury selection and that he made regular admonitions to the jury
to abide by their oaths and remain impartial and fair while all the evidence was
presented. Our review of the record leads us to conclude that the trial court’s
5
According to the record, these two items were present only on April 22, 1996, the
day the trial resumed after its recess.
11
handling of the matter was not erroneous. We cannot say as a matter of law that
the jury was unduly influenced by the wreath or the sign.
E. Finally, Defendants contend that the district court erroneously admitted
evidence that referred to the Oklahoma City bombing. We review the
admissibility of evidence for an abuse of discretion because evidentiary rulings
are committed to the discretion of the trial court. Cartier v. Jackson, 59 F.3d
1046, 1048 (10th Cir. 1995); United States v. Davis, 40 F.3d 1069, 1073 (10th
Cir. 1994), cert. denied, 514 U.S. 1029, 1088 (1995)). The primary statement in
question was made by Mr. Lampley upon his arrest. A government witness, FBI
Agent Mr. Rayburn Collins, testified to the content of this statement at trial.
When asked upon his arrest if he agreed with the Oklahoma City bombing, Mr.
Lampley replied that he did not agree with the target. Defendants assert that this
statement was unfairly prejudicial and had no probative value under a Federal
Rule of Evidence 403 analysis, and thus denied them a fair trial. The government
argues that the statement is relevant and probative because “it shows certain
concerns or motivations that [co-defendant Mr. Lampley] had toward doing the
acts that he [allegedly] did.” R., Vol. XVI at 601. The district court overruled
Defendants’ objection, finding the statement not hearsay because it constituted an
admission by a party, and finding its probative value outweighed any prejudicial
12
effect. We conclude the district court did not abuse its discretion by admitting
this statement into evidence. In sum, we hold that the matters complained of
neither individually nor collectively denied Defendants’ right to a fair trial.
II.
Mr. Lampley claims he was denied his Sixth Amendment right to a public
trial. He argues that the courtroom was restricted on the first day of trial in a
manner that denied him his right to a public trial. Defendant did not make a
contemporaneous objection but raised the issue on the second day of trial. We
review the district court’s underlying factual findings for clear error and the
application of any legal principles de novo. Al-Smadi, 15 F.3d at 154. The right
to a public trial “has always been recognized as a safeguard against any attempt to
employ our courts as instruments of persecution.” In re Oliver, 333 U.S. 257, 270
(1948). This court has determined that “[t]he denial of a defendant’s Sixth
Amendment right to a public trial requires some affirmative act by the trial court
meant to exclude persons from the courtroom.” Al-Smadi, 15 F.3d at 154.
The record does not support the conclusion that the trial court violated the
Al-Smadi rule. The chief activity on the first day of trial was the selection of the
jury. There is no evidence in the record that any person was denied entry to the
courtroom. There is some ambiguous evidence in the record which reflects that
13
spectators or press were in the courtroom on that first day: Prior to calling in the
jury panel, the trial judge stated, “And you folks who are back in the back, you
will have to make way for the jury.” R., Vol. XIV at 22. This statement confirms
that persons other than the jury, lawyers, defendants, judge, and court reporter
were present in the courtroom. The record does not reflect that these persons
were required to leave, and the defendant has not developed the record to the
contrary. From the record, it does not appear that anyone, including defense
counsel, was aware of anyone being excluded the first day of trial.
The only objection concerning a public trial was made by counsel for Mrs.
Lampley at the end of the second day of trial, April 2, 1996. Counsel stated, “It’s
my understanding that if you’re not in here by 8:30 or whenever you’re supposed
to be, that our United States Marshal has said you can’t enter this courtroom,
which in my opinion denies a public fair trial.” R., Vol. XV at 541. Co-
defendant Mr. Lampley joined in this objection. The trial judge responded: “I
don’t know anything about nobody being able to get in here. Somebody told me
earlier that nobody could leave, but I’ve seen spectators and reporters and others
leave here today.” Id. at 542. Additionally, the judge mentioned that an artist
was present first thing in the morning on April 2, and that eight artists and two
reporters were present later in the day. Further, if the trial judge had so ordered,
requiring people to be in their seats within a reasonable time is within his
14
managerial authority. See Bell v. Evatt, 72 F.3d 421, 433 (4th Cir. 1995)
(preventing ingress and egress to courtroom did not violate public trial right
where “trial judge was merely maintaining order in his courtroom and ensuring a
non-disruptive atmosphere”), cert. denied, ___U.S.___, 116 S. Ct. 2533 (1996);
United States v. Clark, 18 F.3d 1337, 1340-41 (6th Cir.) (avowing that the degree
of security provided at trial is within sound discretion of trial judge), cert. denied,
513 U.S. 852 (1994); see also United States v. Collins, 109 F.3d 1413, 1418 (9th
Cir. 1997) (noting “trial court ‘has discretion to use shackles or other security
measures when circumstances dictate’”) (citation omitted), petition for cert. filed
(U.S. June 25, 1997) (No. 97-5002); United States v. Brazel, 102 F.3d 1120,
1155-56 (11th Cir. 1997) (requiring identification from all persons entering
courtroom did not deny defendant’s right to public trial), petition for cert. filed,
(U.S. June 11, 1997) (No. 97-5730); (U.S. June 18, 1997) (No. 96-9447); (U.S.
Aug. 14, 1997) (No. 97-5754).
Mr. Lampley proffered no evidence in the record to contradict the judge’s
observations and implicit findings. He only proffered on appeal an anonymous
newspaper article included as an appendix to his appellate brief. We conclude
that this is insufficient on our own motion to remand for further development of
the record when no attempt was made to develop the issue before the trial court.
The trial judge concluded that there was no closure of the trial. We hold that this
15
finding is not clearly erroneous, and, therefore, do not reach the issue of whether
the Sixth Amendment was violated.
III.
Defendants Mr. Lampley and Mr. Baird contend that the evidence is
insufficient under Bailey v. United States, ___U.S.___, 116 S. Ct. 501 (1995), to
support their convictions beyond a reasonable doubt for use or carrying of a
firearm during and in relation to the conspiracy. To sustain a conviction under 18
U.S.C. § 924(c)(1), the government must prove three elements: (1) the defendant
committed the underlying crime; (2) the defendant “used” or “carried” a weapon;
and (3) the use or carriage of the weapon was “during and in relation to” the
conspiracy. United States v. Richardson, 86 F.3d 1537, 1546 (10th Cir.) (quoting
United States v. Nicholson, 983 F.2d 983, 990 (10th Cir. 1993)), cert. denied,
___U.S.___, 117 S. Ct. 588 (1996). We review the sufficiency of the evidence de
novo, viewing the evidence and the inferences therefrom in a light most favorable
to the government, to determine if a reasonable jury could find beyond a
reasonable doubt that the defendant was guilty. United States v. Voss, 82 F.3d
1521, 1524-25 (10th Cir.), cert. denied, ___U.S.___, 117 S. Ct. 226 (1996).
Neither Mr. Lampley nor Mr. Baird challenges the sufficiency of evidence
for his conviction of the underlying crime of violence. They also do not contest
16
that the conspiracy charged in this case fits the definition of a crime of violence;
the construction of an explosive device inherently involves a substantial risk that
physical force will be used against the person or property of another. 6 The
government argues the evidence is sufficient to show Defendants “carried” a
firearm “during and in relation to” the conspiracy. 7 In Bailey, the Supreme Court
distinguished the “use” prong of section 924(c)(1) from the “carry” prong. The
Court, holding that a section 924(c)(1) conviction for “use” requires the defendant
to “actively employ[] the firearm during and in relation to the predicate crime,”
did not define the “carry” prong but advised that “use” of a firearm does not
subsume the “carry” prong. Bailey, 116 S. Ct. at 508-09. Additionally, we have
noted that Bailey suggested that “neither storage nor possession of a gun, without
more, satisfies the ‘carry’ prong.” United States v. Spring, 80 F.3d 1450, 1464
(10th Cir.), cert. denied, ___U.S.___, 117 S. Ct. 385 (1996); see Bailey, 116 S.
Ct. at 509.
To satisfy the “carry” prong, the government must prove the defendant (1)
possessed a firearm through the exercise of dominion and control, and (2)
6
A conspiracy may function as the predicate crime for a section 924(c)(1)
conviction. United States v. Abreu, 962 F.2d 1425, 1431 (10th Cir. 1992) (a 21 U.S.C.
§ 846 conspiracy), aff’d on remand, 997 F.2d 825 (10th Cir. 1993), cert. denied, 512 U.S.
1239 (1994). Section 924(c)(1) does not restrict predicate crimes to substantive crimes.
7
We do not address the issue of “use” because the government concedes the
evidence is not sufficient to meet the Bailey standard for either Mr. Lampley or Mr.
Baird.
17
transported or moved a firearm “during and in relation to” the predicate offense.
See Richardson, 86 F.3d at 1548; Spring, 80 F.3d at 1465. Defendants do not
dispute that they physically carried a firearm while the conspiracy was ongoing. 8
The issue is whether Mr. Lampley and Mr. Baird carried a firearm “during and in
relation to” the conspiracy pursuant to section 924(c)(1). The government must
prove that each “defendant availed himself of the weapon and that the weapon
‘played an integral role’ in the [underlying] offense.” Richardson, 86 F.3d at
1548 (quoting Nicholson, 983 F.2d at 990). Essentially, we must determine
whether the evidence in the record is sufficient, as to both Mr. Lampley and Mr.
Baird, to establish a nexus between the carriage of the gun and the underlying
crime of conspiracy. Where, as here, the conspiracy never resulted in an
underlying substantive crime, 9 we are faced with a difficult task. Mere carrying
8
The record shows that Mr. Lampley purchased four firearms, three SKS rifles and
a .22 rifle, on August 20 and 22, 1995. He transported those firearms back to his
residence. Mr. Lampley carried one SKS rifle during target practice on the informant’s
property in late August 1995. He also carried a firearm, in August 1995, out of his home
to his yard where he pointed it at a plane overhead.
The record also confirms that Mr. Baird carried and held two firearms, a .38
caliber revolver and a .30 caliber carbine, during a conversation with the informant on
November 10, 1995. Mr. Baird physically transported the revolver in a holster from his
trailer to the location of the conversation outside. His fingerprints were on his firearms.
9
In many of our cases, the underlying predicate crime for a conviction under
section 924(c)(1) was a drug conspiracy. See United States v. Arias-Santos, 120 F.3d
271, 1997 WL 452254 (10th Cir. 1997) (convicted of conspiracy to possess with intent to
distribute cocaine); Abreu, 962 F.2d at 1431 (convicted of conspiracy to distribute
cocaine). The defendants convicted in these drug conspiracy cases were also convicted of
18
of the gun temporally to the conspiracy is not sufficient to meet the “during and
in relation to” element. See id. at 1549. Some further nexus must be shown, such
as an overt act of planning for, preparation for, or agreement to the conspiracy.
Mr. Lampley claims that he purchased the firearms for his self-defense in
response to the FBI’s notification of a death threat against him from the Texas
Constitutional Militia. He argues that he only purchased the guns in order to
protect himself against the death threat, one that he believed came from Jonathan
Bernstein and the Anti-Defamation League, because the local sheriff did not have
the resources to protect him. The record indicates that Mr. Lampley did purchase
the firearms with the intent to arm himself and those around him, that he
transported those weapons back to his residence, that he “went on a march” to do
“some target practice” with an SKS rifle (R., Vol. XVII at 1130), that he pointed
a weapon at a plane flying over his residence, and that he loaned one of his guns
to the informant so the informant would be armed. The government argues that
these activities constitute overt acts of planning and preparation “during and in
the underlying substantive offenses, perhaps making it easier to demonstrate a nexus
between the use or carriage of a firearm and the conspiracy. See Arios-Santos, 1997 WL
452254 at *4; Abreu, 962 F.2d 1430-32; see also United States v. Washington,
___F.3d___, 1997 WL 614568 (6th Cir. 1997) (convicted of conspiracy to distribute
crack cocaine and possession with intent to distribute crack cocaine); United States v.
Jackson, 65 F.3d 631, 633-34 (7th Cir. 1995) (defendant Jackson convicted of conspiracy
to distribute cocaine and cocaine possession, manufacturing, and distribution charges),
rev’d in part sub nom. United States v. Lamb, 82 F.3d 420 (7th Cir. 1996) (reversing
convictions for co-defendants under Bailey).
19
relation to” the conspiracy. More than one reasonable inference may be drawn
from these activities relating to Mr. Lampley’s firearms. 10 One reasonable
inference is that Mr. Lampley purchased and utilized the firearms to plan and
prepare for the strike force that would carry out the detonation of an explosive
device. A jury, therefore, could reasonably infer from the collective facts in the
record that a nexus existed between the underlying conspiracy and Mr. Lampley’s
carriage of the firearm.
Mr. Baird contends that he only expressed an intent to use his firearms in
the future, thereby not meeting the Bailey standard, 11 and that he did not carry the
guns “during and in relation to” the conspiracy. A review of the record discloses
that on November 10, 1995, Mr. Baird had a discussion with the informant on Mr.
Lampley’s property. Mr. Baird had both of his weapons with him at this time.
During the discussion, Mr. Baird displayed at least one weapon to the informant
and demonstrated that he had taped together three 15-round clips of ammunition
for easier and more effective use of his .30 caliber carbine. He explained to the
informant how he would eliminate any threats and quickly kill many people with
the forty-five rounds of ammunition. The government submits that this evidence
is sufficient to show the weapon was an integral part of Mr. Baird’s activities--to
10
We conclude that Mr. Lampley’s pointing a gun at a plane flying overhead is not
an overt act committed “during and in relation to” the conspiracy.
11
See supra note 7.
20
prepare the strike force necessary to deploy an explosive destructive
device--“during and in relation to” the conspiracy. Collectively, this record
evidence allows the jury to reasonably infer that a nexus existed between the
underlying conspiracy and Mr. Baird’s carriage of firearms. Taking the evidence
and inferences therefrom in a light most favorable to the government, we hold
that a reasonable jury could find beyond a reasonable doubt that both Mr.
Lampley and Mr. Baird carried a firearm “during and in relation to” the
conspiracy.
IV.
Mr. Lampley also contends that the evidence is insufficient to support the
jury verdict on the charge of solicitation to commit a violent crime. Title 18
U.S.C. § 372 makes it unlawful to conspire to induce any officer 12 of the United
States to engage in conduct constituting a felony. We review the sufficiency of
the evidence de novo, viewing the evidence and the inferences therefrom in a light
most favorable to the government, to determine if a reasonable juror could find
beyond a reasonable doubt that the defendant was guilty. Voss, 82 F.3d at 1524-
25. Defendant testified that he was solicited and entrapped by the informant. Our
There is no dispute that the informant qualifies as an officer because he was
12
employed by the United States to gain the confidence of the co-conspirators in this case.
See 18 U.S.C.A. § 372, n. 16.
21
review of the record indicates that the government presented testimony of the
informant and another co-conspirator, Mr. Larry Crow, 13 and a tape recording to
support the charge of solicitation. According to the record, Mr. Lampley inquired
if he could count on the informant’s participation and asked the informant to be
responsible for the actual “blowing up” or detonation of explosives. R., Vol.
XVII at 1081-83; Vol. XX at 1764-65. We conclude that this evidence is more
than sufficient to sustain a conviction because the jury could reasonably conclude
beyond a reasonable doubt that Mr. Lampley solicited the informant.
V.
Mr. Lampley further argues that the district court erroneously denied his
motion for judgment of acquittal based on entrapment. We review the district
court’s denial of a motion for judgment of acquittal de novo, viewing all the
evidence and drawing all reasonable inferences in a light most favorable to the
government. United States v. Young, 954 F.2d 614, 616 (10th Cir. 1992).
The defense of entrapment prohibits law enforcement conduct which
implants a criminal design in an innocent person’s mind and induces that person
to commit a crime he is otherwise not predisposed to commit. See Jacobsen v.
13
Mr. Crow was originally indicted along with Mr. and Mrs. Lampley and Mr.
Baird. At the time of this trial, Mr. Crow was awaiting acceptance of his plea to a lesser
charge of misprision of felony and a separate sentencing hearing.
22
United States, 503 U.S. 540, 548 (1992) (citing Sorrells v. United States, 287 U.S.
435, 441 (1932)). The inquiry in an entrapment defense has two parts: (1) the
lawfulness of the government’s conduct, and (2) the defendant’s predisposition to
engage in the criminal activity. See United States v. Russell, 411 U.S. 423, 435-
36 (1973); Sherman v. United States, 356 U.S. 369, 372, 376-78 (1958). Mr.
Lampley only challenges the sufficiency of evidence of his predisposition,
independent of the government’s actions, to violate the law by conspiring to build
and possess an explosive device. In making a determination on predisposition,
this court focuses on the defendant’s propensities to commit the offense; whether
the defendant was an “unwary innocent” or an “unwary criminal.” Sherman, 356
U.S. at 372; see United States v. Fadel, 844 F.2d 1425, 1433 (10th Cir. 1988).
The question of entrapment generally is one for determination by the jury. 14
See Mathews v. United States, 485 U.S. 58, 63 (1988). This court has determined
that “the factfinder is traditionally in the better position to evaluate conflicting
evidence and determine credibility”; and, therefore, conflicting evidence as to a
defendant’s predisposition precludes a finding of entrapment as a matter of law.
United States v. Madrigal, 43 F.3d 1367, 1370 (10th Cir. 1994), cert. denied, 514
U.S. 1089 (1995). Entrapment as a matter of law exists only when there is
14
The defense of entrapment was argued to the jury, and the jury was instructed on
the law of entrapment. The defendant does not object to the content of those instructions.
23
undisputed evidence “‘which shows conclusively and unmistakably that an
otherwise innocent person was induced to commit the act.’” Id. at 1369 (citation
omitted) (quoting United States v. Gurule, 522 F.2d 20, 23 (10th Cir. 1975), cert.
denied, 425 U.S. 976 (1976)).
The evidence in the record is insufficient to meet the high standard for
entrapment as a matter of law; there is no such undisputed evidence in this case.
The defense of entrapment was a heavily contested issue during Mr. Lampley’s
trial. Defendant argued that (1) the government “manufactured” the 18 U.S.C.
§ 924(c) firearm violation “by inspiring, inciting, persuading, and luring him to
purchase firearms”; (2) the government inspired him and induced him to conspire
with others to produce an explosive device; and (3) he never solicited the
informant, but assuming arguendo that he did, he was induced to solicit the
informant to commit a crime of violence. Appellant’s Brief at 28-32. The
government presented conflicting evidence that (1) Defendant engaged in
activities relating to the construction of an explosive device without the
informant’s knowledge and before the informant was solicited by Defendant to
participate in the conspiracy; (2) Defendant solicited the informant to help carry
out the conspiracy to build and possess an explosive device; and (3) Defendant
carried guns during and in relation to the conspiracy without inspiration from the
government. Consequently, we cannot say that Mr. Lampley was entrapped as a
24
matter of law. The evidence presented in the record is sufficient to support the
jury verdict on these facts.
VI.
Mrs. Lampley challenges the sufficiency of the evidence to support the
jury’s verdict that she was guilty beyond a reasonable doubt of conspiracy.
Again, we review the sufficiency of the evidence de novo, viewing the evidence
and inferences therefrom in a light most favorable to the government, to
determine if a reasonable juror could find beyond a reasonable doubt that the
defendant was guilty. Voss, 82 F.3d at 1524-25. This court has recognized “that
the conspiracy doctrine is inherently subject to abuse and that the government
frequently uses conspiracy to cast a wide net that captures many players.”
Richardson, 86 F.3d at 1546 (quoting United States v. Evans, 970 F.2d 663, 668
(10th Cir. 1992), cert. denied, 507 U.S. 922 (1993)). To obtain a conviction for
conspiracy, the government must prove that (1) there was an agreement to violate
the law; (2) the defendant knew the essential objectives of the conspiracy; (3) the
defendant knowingly and voluntarily took part in the conspiracy; and (4) the co-
conspirators were interdependent. Id. However, the secrecy inherent in the
nature of a conspiracy “often requires that elements of the crime be established by
25
circumstantial evidence.” Id. (quoting United States v. Andrews, 585 F.2d 961,
964 (10th Cir. 1978)).
Defendant testified that she had little knowledge of the conspiracy and that
her knowledge alone was insufficient to satisfy the requirements of conspiracy.
She denied that she participated in the conspiracy and submitted that she was
arrested, indicted, and convicted merely because of her relationship to Mr.
Lampley. A review of the record shows that the government presented conflicting
evidence. The government informant testified that Defendant knew the objectives
of the conspiracy when she participated in a discussion with Mr. Lampley and the
informant on September 30, 1995, concerning the Department of Human Services
as a potential bombing target. This testimony and a tape recording revealed that
Mrs. Lampley suggested it was necessary to call in a bomb threat before
detonation in order to save the lives of children in the building. She stated that it
was essential the clock was accurate to ensure this warning would save lives. The
informant also testified, and a tape recording confirmed, that on November 8,
1995, Mr. Lampley said his wife knew everything and had a right to know if she
was going to risk her life. Additionally, the informant testified that on November
7, 1995, Mrs. Lampley helped “cook” ammonium nitrate in her oven to remove its
moisture and prepare it as an explosive. R., Vol. XVII at 1143-44; Vol. XIX at
1532-34. The record reflects that the temperature in the oven was 150 degrees, as
26
indicated on a thermometer held by Mrs. Lampley and displayed to the informant.
There is also some record evidence that Mrs. Lampley made a photocopy of a
recipe for an explosive device and handed it to the informant. Finally, pursuant to
a search warrant, law enforcement officers seized evidence in plain view from the
Lampleys’ trailer and church building. According to the record, this evidence
consisted of the following: A recipe for “cookies” on the table in the trailer
where Mr. and Mrs. Lampley slept, which turned out to be a recipe for C-4, an
explosive substance; the Anarchists Cookbook in the same trailer on the unmade
bed Defendant testified she had slept in the previous night; and a shopping list for
fertilizer and nitromethane, ingredients for an explosive device, on the table in the
same trailer. Although more than one reasonable inference can be drawn from
these facts, a jury could reasonably infer that Mrs. Lampley had knowledge of the
objectives and knowingly acted in furtherance of the conspiracy. We conclude
that, viewed collectively and in a light most favorable to the government, the
record evidence and inferences therefrom are sufficient to support a reasonable
jury finding beyond a reasonable doubt that Mrs. Lampley was guilty of
conspiracy.
VII.
27
Defendants Mr. Lampley and Mr. Baird argue that the district court erred in
denying a motion to dismiss because their right to a speedy trial was violated
pursuant to the 1974 Speedy Trial Act (the Act), codified at 18 U.S.C. §§ 3161-
3174. We review the district court’s denial of a motion to dismiss for violation of
the Act for an abuse of discretion, and review the district court’s compliance with
the legal requirements of the Act de novo. United States v. Earls, 42 F.3d 1321,
1323-24 (10th Cir. 1994), cert. denied, 514 U.S. 1085 (1995); United States v.
Occhipinti, 998 F.2d 791, 796 (10th Cir. 1993).
The issue here turns on the calculation of the days excludable from the
seventy-day time limitation provision of the Speedy Trial Act. This provision,
section 3161(c)(1), requires that a criminal trial shall commence “within 70 days
of the latest of a defendant’s indictment, information, or appearance, barring
periods of excludable delay.” Henderson v. United States, 476 U.S. 321, 326
(1986) (citing United States v. Rojas-Contreras, 474 U.S. 231 (1985)). The Act
provides that certain periods of time may be excluded from the computation as
allowable delay. Section 3161(h)(1)(F) states that “[a]ny period of delay resulting
from other proceedings concerning the defendant, including but not limited to . . .
delay resulting from any pretrial motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of, such motion,” shall
be excluded from computing the proper commencement date for trial. This means
28
that any delay attributable to the filing and resolution of Defendants’ pretrial
motions is excluded. More importantly, the Act excludes from computation any
reasonable period of delay attributable to other co-defendants, absent severance.
18 U.S.C. § 3161(h)(7); see United States v. Tranakos, 911 F.2d 1422, 1426 (10th
Cir. 1990).
There were a total of 128 days from the indictment on November 15, 1995,
the latest of the indictment, information or appearance, to the commencement of
the trial on April 1, 1996. The government’s calculations result in forty-one
countable days from the date of indictment to the date the trial began. Our own
examination of the record, after excluding each defendant’s motions and co-
defendants’ properly attributable motions, reveals fifty-eight countable days from
the November 15, 1995 indictment to the date the trial began on April 1, 1996.
Either calculation is well within the seventy-day time limit of the Act. Moreover,
Defendants do not challenge the issue of excludable days. We conclude that the
district court properly denied Defendants’ motion to dismiss.
VIII.
Mr. Baird claims that the district court erred because it did not dismiss
Count IV of the indictment, the 18 U.S.C. § 924(c) charge, for prosecutorial
vindictiveness. Mr. Baird argues that by seeking a superseding indictment
29
containing the additional charge, the government exhibited vindictive behavior
and attempted to punish him for his refusal to plead and for exercising his right to
a jury trial. We review the district court’s factual findings for clear error and the
legal principles which guide the court de novo. United States v. Raymer, 941
F.2d 1031, 1039 (10th Cir. 1991). To establish a claim of prosecutorial
vindictiveness, the defendant must prove either (1) actual vindictiveness, or (2) a
realistic likelihood of vindictiveness which will give rise to a presumption of
vindictiveness. See United States v. Goodwin, 457 U.S. 368, 376, 380-81, 384 &
n.19 (1982); United States v. Wall, 37 F.3d 1443, 1447 (10th Cir. 1994); Raymer,
941 F.2d at 1040. If the defendant meets this burden, the prosecution then must
“justify its decision with legitimate, articulable, objective reasons.” Raymer, 941
F.2d at 1040 (citations omitted).
“When a defendant exercises constitutional or statutory rights in the course
of criminal proceedings, the government may not punish him for such exercise
without violating due process guaranteed by the federal Constitution.” Id.; see
Goodwin, 457 U.S. at 372; Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).
The inquiry is “whether, ‘as a practical matter, there is a realistic or reasonable
likelihood of prosecutorial conduct that would not have occurred but for hostility
or [a] punitive animus towards the defendant because he exercised his specific
legal rights.’” Raymer, 941 F.2d at 1042 (quoting United States v. Gallegos-
30
Curiel, 681 F.2d 1164, 1169 (9th Cir. 1982)). However, the Supreme Court has
generally rejected the presumption of prosecutorial vindictiveness in the pretrial
context. See Goodwin, 457 U.S. at 381-84; Bordenkircher; 434 U.S. at 363-64.
The Supreme Court’s conclusions are premised on the realities of the criminal
justice system: “[T]he guilty plea and the often concomitant plea bargain are
important components of this country’s criminal justice system.” Bordenkircher,
434 U.S. at 361-62 (quoting Blackledge v. Allison, 431 U.S. 63, 71 (1977)). “[I]n
the ‘give-and-take’ of plea bargaining, there is no such element of punishment or
retaliation so long as the accused is free to accept or reject the prosecution’s
offer.” Id. at 363. The Court has cautioned that “so long as the prosecutor has
probable cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his discretion.” Id. at 364 (footnote
omitted).
The record does not support a claim of either actual vindictiveness or the
realistic likelihood of vindictiveness that translates to a presumption of vindictive
behavior. According to the record, the government notified Mr. Baird of its
intention to add a superseding indictment pursuant to 18 U.S.C. § 924(c)(1)
during the November 28 and 29, 1995 detention hearing, and also in a letter to
him in December 1995. The plea negotiations, which took place sometime during
31
the last week of December 1995 and the first week of January 1996, included the
inherent offers and rejections of pleas as well as discussions of possible
sentencing if Defendant pled guilty or was found guilty at trial. The record also
indicates that some evidence supporting the section 924(c)(1) charge against Mr.
Baird was not reviewed by the government until after the November 15, 1995
indictment had been returned and, also, was not provided to the government until
January 5, 1996. The district court’s determination that a presumption of
vindictive prosecution was unfounded is not clearly erroneous. Given the
Supreme Court’s precedent in the pretrial setting, the facts in this case prove
neither actual vindictiveness nor a reasonable likelihood of vindictiveness. The
district court properly declined to dismiss the superseding indictment based upon
prosecutorial vindictiveness.
IX.
Finally, Defendants Mr. Lampley and Mrs. Lampley challenge, pro se, the
original jurisdiction of the federal district court to prosecute crimes committed
within the States. Their principal argument is that the States are sovereign and
the federal government is not authorized to prosecute crimes committed within
their borders. The Supremacy Clause, the Civil War, the decisions of the
Supreme Court, and acts of Congress make it clear that so long as there is a
32
constitutionally authorized federal nexus, the federal government is free to act
anywhere within the United States. See U.S. Const. art. VI., cl. 2; 18 U.S.C.
§ 3231; Abbate v. United States, 359 U.S. 187, 192-94 (1959); Moore v. Illinois,
55 U.S. (14 How.) 13, 20 (1852); United States v. Hudson, 11 U.S. (7 Cranch) 32,
33-34 (1812).
To the extent that Defendants’ pro se briefs can be read to raise a nexus
based jurisdictional issue under United States v. Lopez, 514 U.S. 549 (1995), the
indictment and the record clearly establish the allegation of interstate commerce.
We affirm the district court with respect to all issues raised by all
Defendants in their respective cases.
AFFIRMED.
33