United States v. Lebaron ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
Revised October 16, 1998
September 25, 1998
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
____________
No. 97-20517
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON MOREL LeBARON, also known as Jason Troy
Barter, also known as Shawn Harvey Yates,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,
Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Aaron Morel LeBaron appeals his convictions on one count of
conspiracy to obstruct religious beliefs, in violation of 18 U.S.C.
§§ 247 and 2, and two RICO counts, in violation of 18 U.S.C. §§ 1962
(c) and (d). He contends that the district court improperly
admitted extrinsic evidence of bad acts under Federal Rule of
Evidence 404(b). He also appeals the denial of his post-conviction
motion to dismiss certain counts of the indictment, alleging
incorrect application of the rule of specialty. We affirm.
I
Ervil LeBaron, Aaron’s father, founded the Church of the Blood
of the Lamb of God, a polygamous patriarchal religion. According
to the Church doctrine, people who covenanted with the Church but
left or challenged Ervil, the “Great Grand Patriarch”, became “Sons
(or Daughters) of Perdition.” To bring about the Kingdom of God on
earth, members believed they were obliged to kill each “Son of
Perdition” or risk damnation themselves. Ervil wrote the Book of
the New Covenant of the Millennial Church of Jesus Christ, in which
he named Daniel Jordan, Ed Marston, Duane Chynoweth, and Mark
Chynoweth as “Sons of Perdition.”1
After several leadership changes, Aaron became the Great Grand
Patriarch. Aaron’s sister and wife, Cynthia LeBaron, testified
that Aaron taught about the Sons of Perdition. Aaron held meetings
to plan for the execution of Jordan, who had established a church
in Colorado, because Jordan was “keeping the Kingdom of God from
progressing.” To carry out his plan, Aaron and some siblings,
including Cynthia, came to stay with Jordan and professed
membership in Jordan’s church. Heber LeBaron met Aaron near the
camp while Jordan was on a planned family hunting trip. Heber
1
Before Ervil died, his followers split into two groups.
The group loyal to Ervil, including Aaron, went to Mexico. The
group that left Ervil’s Church included Daniel Jordan, Ed Marston,
Duane Chynoweth, and Mark Chynoweth.
-2-
wanted to kill Jordan, and Aaron ordered him to do so. Jordan was
shot and died at the camp.
Later and in a separate incident, Aaron found guns in a truck
stolen by Church members. He considered this to be “a sign from
God that it was time to kill” Ed, Duane, and Mark, “the Sons of
Perdition in Texas.” Aaron instructed Cynthia to go to Houston to
take care of the Sons of Perdition, and gave her money to travel
there to meet Heber. Aaron also ordered Heber by phone to carry
out their deaths, and “before [Heber] made any decisions about
things he would have to run it by Aaron so Aaron could approve.”
In Houston, Heber killed Mark in the office of Mark’s appliance
repair business. To kill the three men simultaneously, Heber
assigned his siblings to kill Ed in Dallas and Duane in Houston.
Both men were killed as they went to make appliance repair pick-ups
for their respective appliance repair businesses. Heber had
Duane’s eight-year-old daughter Jenny, who witnessed Duane’s death,
killed to eliminate her as a witness. Cynthia, one of the
participants in the Texas murders, confessed her participation and
agreed to testify against Aaron in exchange for total immunity.
Based largely on Cynthia’s testimony, a grand jury returned a
fourteen count superseding indictment against Aaron.2 The United
2
The fourteen-count superseding indictment alleged
Conspiracy to Commit Murder for Consideration, in violation of 18
U.S.C. § 1952A (Count 1), Murder for Consideration, in violation of
18 U.S.C. §§ 1952A and 2 (Counts 2-4), Conspiracy to Tamper with a
Witness, in violation of 18 U.S.C. §§ 371 and 1512 (Count 5),
Tampering with a Witness, in violation of 18 U.S.C. §§
-3-
States requested extradition of Aaron, a Mexican citizen, pursuant
to the United States-Mexico Extradition Treaty. The Mexican
Government extradited Aaron, consenting to the prosecution of
certain charges outlined in the Resolution of Extradition
(“Resolution”) and denying consent to other charges.3 When
prosecution proceeded on all fourteen counts, Aaron challenged the
district court’s jurisdiction over the charges to which Mexico had
withheld consent. After Mexico protested the trial of unauthorized
charges, the district court dismissed Counts 2 through 8, and 10
through 12. The jury convicted Aaron of Counts 1, 9, 13, and 14.
The district court granted a post-verdict motion for acquittal on
Count 1 and sentenced Aaron on the remaining three.
II
Aaron argues for reversal of his convictions because the
district court admitted extrinsic evidence of Jordan’s murder at
trial in contravention of Federal Rule of Evidence 404(b).4 We
1512(a)(1)(C) and 2 (Count 6), Use of Firearm, in violation of 18
U.S.C. §§ 924(c)(1) and 2 (Counts 7-8), Conspiracy to Obstruct
Religious Beliefs, in violation of 18 U.S.C. §§ 247(a)(2) and 371
(Count 9), Obstruction of Religious Beliefs, in violation of 18
U.S.C. §§ 247 and 2 (Counts 10-12), and RICO violations, in
violation of 18 U.S.C. §§ 1962 (c) and (d) (Counts 13-14).
3
A formal extradition request must be accompanied by
supporting documents. A district judge in Mexico will give a
judicial opinion to Mexico’s Ministry of Foreign Affairs concerning
the merits of the request. The outcome of this opinion is the
resolution whether to grant extradition. The “Resolution of
Extradition” delineates for which charges extradition is granted.
4
FED. R. EVID. 404(b) provides, in part:
-4-
review the district court’s decision to admit extrinsic evidence
under Rule 404(b) for abuse of discretion. See United States v.
Chavez, 119 F.3d 342, 346 (5th Cir.)(per curiam), cert. denied, __
U.S. __, 118 S. Ct. 615, 139 L. Ed. 2d 500 (1997). The district
court found that the evidence was relevant to show design, motive,
and scheme, and that its relevance and need outweighed the
prejudice.
In United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)
(en banc), we interpreted Rule 404(b) to require a two-step test:
First, we must determine whether extrinsic offense evidence is
relevant to an issue other than the defendant’s character. See id.
(stating standard for relevancy is established by Rule 401).
Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice. See id. at 913
(explaining second step is whether the evidence satisfies Rule
403).
Beechum’s relevancy threshold is satisfied if evidence is
relevant to an issue other than propensity to commit the act, such
as intent, motive, or plan. See FED. R. EVID. 404(b). When
extrinsic evidence is offered to prove intent, the relevancy of
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake of accident . . .
-5-
such evidence is ascertained by comparing the state of mind in
perpetrating the different offenses. See United States v. Gordon,
780 F.2d 1165, 1173 (5th Cir. 1986) (describing relevancy inquiry
for issue of intent). Extrinsic evidence also may be relevant if
it indicates a comprehensive plan. See United States v. West, 22
F.3d 586, 595 (5th Cir. 1994) (“The other crime is admitted to show
this larger goal rather than to show defendant’s propensity to
commit crimes.”)(citation omitted); United States v. Krezdon, 639
F.2d 1327, 1331 (5th Cir. Unit A Mar. 19, 1981)(explaining that
extrinsic evidence is admissible to raise inference of a larger
plan).
Aaron contended during trial that he took no part in the
murders. Aaron’s continual emphasis that he was in Mexico during
the murders made it incumbent upon the Government to elicit
evidence tying Aaron to these murders. Aaron contends that the
plans were dissimilar because evidence of Aaron’s active role in
Jordan’s murder is dissimilar to his passive role in ordering the
Texas murders. We find this argument unpersuasive.
Jordan’s murder is relevant to establish similar intent and
plan. Aaron had the same reason for ordering both the Colorado and
Texas murders--as Great Grand Patriarch, he ordered Heber and other
Church members to kill the Sons of Perdition. Jordan’s murder is
relevant to show a unifying scheme of killing the Sons of Perdition
to attain the Kingdom of God on earth. See United States v.
-6-
Anderson, 933 F.2d 1261, 1273 n.7 (5th Cir. 1991)(stating extrinsic
evidence insufficient to show plan if crimes are “planned” the same
way, but rather each crime must be a part of some overall scheme).
The second Beechum step considers whether the probative value
is substantially outweighed by the prejudicial value. The
probative value “must be determined with regard to the extent to
which the defendant’s unlawful intent is established by other
evidence, stipulation, or inference. It is the incremental probity
that is to be balanced against its potential for undue prejudice.”
Beechum, 582 F.2d at 914 (emphasis added); see id. at n.18
(agreeing that probative value is determined in reference to the
“necessity” for the extrinsic evidence).
Extrinsic evidence is highly probative in a conspiracy case.
“In the context of a conspiracy case, the mere entry of a not
guilty plea sufficiently raises the issue of intent to justify the
admissibility of extrinsic offense evidence.” Gordon, 780 F.2d at
1174. Aaron’s denial of guilt renders the evidence of Jordan’s
murder highly probative on the intent issue.
The probative value is augmented if there is slight direct
evidence. See Williams, 900 F.2d at 827 (“The very limited
evidence the government could adduce on the issues of knowledge and
intent increases the incremental probity of the extrinsic
evidence.”). The Government’s use of Jordan’s murder as a Son of
Perdition, by order of Aaron, was probative of Aaron’s similar
-7-
intent, motive, and plan in killing Ed, Duane, and Mark. Aaron
argues, however, that the government wanted to use the extrinsic
evidence because its case rested almost wholly on Cynthia’s
testimony, a felon and perjurer. However, the limited evidence on
the issue of Aaron’s intent in ordering the Texas murders, and
Aaron’s attack on Cynthia’s credibility, increases the incremental
probity of the extrinsic evidence. See United States v. Henthorn,
815 F.2d 304, 308 (5th Cir. 1987) (finding probative value of
extrinsic offense evidence outweighed possible prejudice where
defendant pled not guilty and attacked credibility of witness).
We also consider whether the prejudicial value of the evidence
substantially outweighed its probative value. Aaron contends that
the emotional testimony of Jordan’s murder, presented at the start
of the government’s case-in-chief,5 was unfairly prejudicial
because the jury may have been more likely to convict him for the
extrinsic offense. The court minimized the danger of undue
5
Part of Aaron’s argument on appeal is that prejudice
arises because the Government introduced the evidence at the start
of the case-in-chief. However, the running objection to the
extrinsic evidence that Aaron made at trial did not go to the order
of proof. United States v. Williams, 604 F.2d 1102, 1113 n.5 (8th
Cir. 1979). Further, at trial the district court judge suggested
that the Government wait to offer the extrinsic evidence until
after the defendant had impeached Cynthia. Counsel responded “If
they’re going to bring it out, we’d just as soon they bring it out
now, Judge.” Based on this waiver, we cannot find that the trial
court abused its discretion to control the order of proof. See
Huddleston, at 690, 108 S. Ct. at 1501 (“The trial court has
traditionally exercised the broadest sort of discretion in
controlling the order of proof.”).
-8-
prejudice by instructing the jury, under Federal Rule of Evidence
105,6 to consider Jordan’s murder solely “to establish a plan or
scheme . . . as it relates to the crimes charged in the indictment”
and “for the very limited purpose of determining whether Mr.
LeBaron’s state of mind at the time alleged in the indictment in
this case was sufficient to establish a motive or intent to commit
the crimes alleged in the indictment.” See Huddleston v. United
States, 485 U.S. 681, 691-92, 108 S. Ct. 1496, 1502, 99 L. Ed. 2d
771 (1988) (stating Rule 105 safeguards against undue prejudice);
United States v. White, 972 F.2d 590, 599 (5th Cir. 1992)(“[D]anger
of prejudice to the defendant is minimal so long as it is clear to
the jury that the extrinsic evidence is being introduced for the
sole purpose of showing intent.”); see generally FIFTH CIRCUIT
PATTERN JURY INSTRUCTIONS § 1.30, at 44-45 (West 1997) (similar
acts).
Under Beechum, the evidence of Aaron’s direction to Heber to
kill Jordan is relevant to his intent and motive in the Texas
murders. Due to Aaron’s denial of guilt and challenge to Cynthia’s
testimony, in conjunction with the district court’s limiting
instruction, the prejudicial value of the evidence is not
6
FED. R. EVID. 105 provides:
When evidence which is admissible as to one party or for
one purpose but not admissible as to another party or for
another purpose is admitted, the court, upon request, shall
restrict the evidence to its proper scope and instruct the
jury accordingly.
-9-
substantially outweighed by its probative value. We cannot say
that the district court abused its discretion in admitting the
evidence of Dan Jordan’s murder.
III
Aaron argues that the district court erred in denying his
motion to dismiss Counts 9 and either 13 or 14 under the doctrine
of specialty. Under this doctrine, a “requisitioning state may
not, without the permission of the asylum state, try or punish the
fugitive for any crimes committed before the extradition except the
crimes for which he was extradited.” United States v. Miro, 29
F.3d 194, 199 (5th Cir. 1994)(citation omitted). The extradition
treaty between the United States and Mexico expressly includes the
doctrine: “A person extradited under the present Treaty shall not
be detained, tried or punished in the territory of the requesting
Party for an offense other than that for which extradition has been
granted . . . .” Extradition Treaty, May 4, 1978, [1979] United
States-United Mexican States, 31 U.S.T. 5059, 5071 (Extradition
Treaty). We review de novo whether an extradition satisfies the
doctrine of specialty. See United States v. Khan, 993 F.2d 1368,
1372 (9th Cir. 1993).
A
The Resolution acknowledged that the United States’s
extradition request had attached the superseding indictment, which
-10-
cited fourteen counts.7 The Resolution recharacterizes the
fourteen counts in the indictment as eight charges:
. . . a) two charges of the use of a firearm during the
commission of a crime of violence, against that which is
put forth in Title 18, Section 924 (C)(1) and(2) of the
United States Code (U.S.C.); b) one charge of being involved
in a fraudulent, influential, and corrupt organization, in
violation of Title 18, Section 1962 of the U.S.C.; c) three
charges of contracting murder-for-hire, violating Title 18,
1952 (A) and (2) (Renumbered as Section 1958) of the U.S.C.;
d) one charge of bribing a witness, in violation of Title 18,
Section 1512 (A)(1)(C) and (2) of the U.S.C.; and e) criminal
conspiracy to commit a homicide, violating Title 18, Section
1952 (A) of the U.S.C.; . . .
The Resolution later stated that:
The extradition of Aaron . . . is granted . . . for the
following charges: one charge of being involved in a
fraudulent, influential, and corrupt organization and criminal
conspiracy to commit homicide. . . . Extradition is not
granted for the charges of: two charges of the use of a
firearm during the commission of a crime of violence, three
charges of contracting murder-for-hire and one charge of
bribing a witness . . .
The different descriptions of the counts in the indictment and
the charges in the Resolution created confusion regarding the
counts on which Aaron could be prosecuted. At the request of the
United States for detailed specification of the counts to which
Mexico had consented, Mexico sent an explanatory diplomatic note
that stated, in pertinent part:
The first point of resolution of said Order authorizes the
processing of [the defendant] . . . for the following
charges:
1. One charge for being involved in a fraudulent,
influential and corrupt corporation, in violation of
7
See supra note 2.
-11-
Section 1962(c) and (d) of Title 18 of the United
States Code.
2. Conspiracy to commit murder, in violation of Sections
247 and 1952 A of Title 18 of the United States Code.
Based on this note, the district court granted the Government’s
motion to dismiss Counts 2-8 and 10-12. Aaron subsequently was
convicted on Counts 1 (Conspiracy to Commit Murder for
Consideration), 9 (Conspiracy to Obstruct Religious Beliefs), 13
(RICO conspiracy), and 14 (substantive RICO); the court later
ordered acquittal on Count 1.
Aaron moved post-verdict to dismiss for want of jurisdiction
Counts 9 and either 13 or 14, contending that Mexico authorized
conspiracy to commit homicide (Count 1) and only one RICO Count
(Count 13 or 14). The district court, persuaded that the note
referred to the statutory section numbers for Counts 1, 9, 13 and
14, denied this motion.
B
Whether Aaron has standing to raise the doctrine of
specialty is an undecided issue in this circuit. See United
States v. Kaufman, 858 F.2d 994, 1009 n.5 (5th Cir.1988)
(declining to address standing issue), reh’g denied, 874 F.2d
242, 243 (5th Cir. 1989) (per curiam). We need not decide this
issue because, even assuming arguendo that Aaron has standing to
challenge jurisdiction, we find that prosecution on the four
counts did not violate the doctrine.
Initially, we find that the Resolution may seem ambiguous.
-12-
The charges listed in the Resolution do not directly correlate to
the numbered counts in the superseding indictment. Accordingly,
we consider whether Aaron was prosecuted for additional counts or
offenses beyond those for which he was extradited.
In Fiocconi v. Attorney General of United States, 462 F.2d
475, 481 (2d Cir. 1972), the defendants challenged the court’s
jurisdiction to try them on a superseding indictment that added
offenses subsequent to the ones for which they were extradited.
The Second Circuit explained that the doctrine of specialty
operates to prevent extradictees from indiscriminate prosecution,
particularly for political crimes. See id. “[I]n the absence of
any affirmative protest from [the sending country],” the Second
Circuit did “not believe that Government would regard the
prosecution of [the defendants] for subsequent offenses of the
same character as the crime for which they were extradited as a
breach of faith by the United States.” Id.
The Ninth Circuit has reached the same conclusion. In
United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994), a
grand jury returned a superseding indictment after the defendants
were extradited. The defendants argued that trial on the
superseding indictment violated the doctrine of specialty because
the indictment that formed the basis for the extradition had
contained fewer counts. The court rejected this argument because
“[t]he superseding indictment altered neither the nature of the
-13-
scheme alleged nor the particular offenses alleged.” Id. at
1437.
These cases suggest that the doctrine of specialty is
concerned primarily with prosecution for different substantive
offenses than those for which consent has been given, and not
prosecution for additional or separate counts of the same
offense. The appropriate test for a violation of specialty “is
‘whether the extraditing country would consider the acts for
which the defendant was prosecuted as independent from those for
which he was extradited.’” Id. at 1435 (citations omitted).
Moreover, we do not believe Mexico would consider the acts
for which Aaron was prosecuted to be independent from those for
which he was extradited. Aaron maintains that the difference in
descriptions of the counts in the indictment and the charges in
the Resolution is significant. We should not assume that the
extraditing country is cognizant of the Federal Rules of Criminal
Procedure on charging a criminal indictment, and Aaron has
produced no evidence that “one charge” in Mexico has the same
meaning as “one count” in the United States.
The Resolution described the RICO counts as “one charge of
being involved in a fraudulent, influential, and corrupt
organization, in violation of Title 18, Section 1962 of the
U.S.C.,” and Mexico consented to extradition on this basis. The
Resolution also described “criminal conspiracy to commit a
-14-
homicide, violating Title 18, Section 1952 (A),” to which Mexico
also consented. For the remaining charges described in the
Resolution, Mexico expressly withheld its consent. The words
that Mexico used later in the Resolution to give or withhold
consent clearly correlate with the specific words it used earlier
in the Resolution to articulate the charges.
This correlation suggests that the use of the singular word
“one” in Mexico’s Resolution does not limit prosecution from
“two” RICO counts to “one.” The Resolution referred to the two
RICO counts in the indictment as one charge when initially
describing those charges. Mexico’s consent to the “one” RICO
charge in the Resolution can be understood as consent for both
RICO counts in the indictment. Indeed, Mexico expressed its full
consent for prosecution of the RICO offenses, as Mexico had
described them in the Resolution. This interpretation is
bolstered by the fact that, in response to the United States’s
request for clarification, Mexico’s explanatory letters
specifically referenced §§ 1962 (c) and (d), which were the
statutory basis for Counts 13 and 14. Mexico never expressed
opposition to prosecution under any portion of § 1962. Based on
Mexico’s authorization for the RICO charges in the Resolution,
its citation of the statutory predicates for Counts 13 and 14,
and its failure to object to trial on both counts, we find that
Mexico would not consider the RICO acts for which Aaron was
-15-
prosecuted to be independent of the RICO acts for which he was
extradited.
Similarly, we must determine whether Mexico’s consent to
prosecute “criminal conspiracy to commit homicide” authorized
prosecution on Count 9, conspiracy to obstruct religious beliefs.
In the explanatory letter, Mexico specifically authorized
prosecution under § 247, which appears only in Count 9. Like
Counts 13 and 14, never has Mexico expressly objected to
prosecution for Count 9. Aaron contends that license to
prosecute “conspiracy to commit murder” does not license
prosecution for conspiracy to obstruct religious beliefs. We
previously found in United States v. Barlow, 41 F.3d 935, 943
(5th Cir. 1994)(per curiam), that “the plain language of § 247
manifests Congress’ specific intent to make criminal, inter alia,
the conduct at issue here: the killing of Ed, Mark, and Duane
for the sole reason that they chose to exercise their right to
extricate themselves from the beliefs, practices, and fellowship
of the Church.” For these reasons, we find that Mexico would not
consider Aaron’s conviction for conspiracy to obstruct religious
beliefs to be an offense so separate from the one for which he
was extradited as to be a breach of faith by the United States.
See Fiocconi, 462 F.2d at 481.
IV
In summary, the district court properly admitted the
-16-
extrinsic evidence of bad acts under Rule 404(b). Additionally,
we find no violation of the doctrine of specialty, and thus the
district court had jurisdiction to try the defendant for Counts
9, 13, and 14. Accordingly, Aaron’s convictions are AFFIRMED.
-17-