United States v. Wendy Moore , 810 F.3d 932 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4645
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WENDY ANNETTE MOORE,
Defendant - Appellant.
No. 14-4646
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER AUSTIN LATHAM,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:13-cr-00330-RMG-1; 2:13-cr-00330-RMG-5)
Argued: December 10, 2015 Decided: January 20, 2016
Before TRAXLER, Chief Judge, and MOTZ and HARRIS, Circuit
Judges.
Affirmed by published opinion. Judge Harris wrote the opinion,
in which Chief Judge Traxler and Judge Motz joined.
ARGUED: Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville,
South Carolina; James Arthur Brown, Jr., LAW OFFICES OF JIM
BROWN, PA, Beaufort, South Carolina, for Appellants. Rhett
DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, Columbia, South Carolina, Nathan S. Williams,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.
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PAMELA HARRIS, Circuit Judge:
A jury convicted Wendy Annette Moore and Christopher Austin
Latham of participating in a murder-for-hire plot targeting
Latham’s estranged wife. In this consolidated appeal, Moore and
Latham challenge their convictions, arguing that the district
court constructively amended the indictment through erroneous
jury instructions and improperly admitted hearsay and character
evidence. We disagree, and affirm the convictions.
I.
A.
Viewed in the light most favorable to the government, see
United States v. Lentz, 524 F.3d 501, 507 (4th Cir. 2008), the
evidence at trial established the following. On April 5, 2013,
police officers stopped Aaron Wilkinson as he drove through the
city of Charleston, South Carolina. Wilkinson revealed to the
police that he and his former prison cellmate, Samuel Yenawine,
were involved in a murder-for-hire plot targeting Nancy Latham.
The planned murder had not yet occurred.
Investigators later learned that appellants Christopher
Latham and Wendy Moore also were involved in the plot.
Christopher Latham, a banking executive in Charleston, was in
the process of divorcing the targeted victim, Nancy Latham, now
known as Nancy Cannon. Moore was Latham’s assistant at the
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bank, as well as his girlfriend. Moore is also the ex-wife of
Samuel Yenawine.
Wilkinson explained to the police that a few days before
the April 5 stop, Yenawine had suggested to him that they travel
together from Louisville, Kentucky to Nashville, Tennessee to
buy drugs. Wilkinson agreed, and Yenawine’s girlfriend, Rachel
Palmer, rented a car for them – the car that Wilkinson was
driving when the police stopped him. Once the two men were on
the road, Yenawine told Wilkinson that they actually were headed
to South Carolina, where Yenawine planned to kill a person he
described as a witness in a RICO case.
After arriving in Charleston, Yenawine purchased a pay-as-
you-go cell phone and Wilkinson heard him use it to speak to a
woman. Yenawine told Wilkinson that the woman would meet them
at a hotel in North Charleston and that she would be driving a
white 2001 Dodge Durango. Appellant Moore, who drove a white
Dodge Durango at the time, arrived at the hotel, and Wilkinson
observed Yenawine meet with her. Moore rented a room for
Yenawine and Wilkinson, and Yenawine returned from the meeting
with $5,000 cash and other items. Yenawine gave Wilkinson
$2,500 for himself and another $2,000 to wire to Rachel Palmer
in Kentucky.
Wilkinson observed Yenawine meet with Moore a second time
in a different location, returning this time with a manila
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envelope. Investigators determined that the envelope contained
a “hit packet” with information related to the plot to murder
Nancy Cannon, including printed maps with handwritten notes;
personal information about Cannon, her family, her schedule, her
vehicle, and her daily routine; and photographs of Cannon, her
residence, and one of her daughters.
Investigators later linked the contents of the hit packet
to appellants Latham and Moore. The hit packet’s photograph of
Cannon’s house, for instance, was found on Latham’s personal
cell phone. Handwriting analysis revealed that notes on some of
the materials were written by Moore. And the government’s
evidence connected other contents of the hit packet to activity
on Latham’s phone and the appellants’ office computers and
individual office printers.
Investigators also uncovered independent evidence –
including cell phone tower evidence and bank records – that
further corroborated Wilkinson’s story. And the government’s
evidence suggested that Latham and his parents had provided
funds to pay Moore’s lawyers, and that Moore and her parents had
provided funds to pay Yenawine’s lawyer.
Moore, Yenawine, and Wilkinson were arrested in April 2013
and charged with crimes related to the murder-for-hire plot. In
June 2013, Yenawine committed suicide in jail.
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B.
On August 6, 2013, a grand jury returned a superseding
indictment against appellants Moore and Latham, as well as
Wilkinson and Palmer. In the two counts principally at issue
here, the indictment charged Moore and Latham with federal
crimes involving murder for hire: Count One charged conspiracy
to use interstate commerce facilities in the commission of
murder for hire, and Count Three, the use of interstate commerce
facilities in the commission of murder for hire, both in
violation of 18 U.S.C. § 1958(a). Moore alone was charged in
Count Two with solicitation of murder for hire in violation of
18 U.S.C. §§ 373 and 1958, and both appellants were charged in
Count Four with illegal firearm possession under 18 U.S.C.
§ 924(c)(1) and (2).
Moore and Latham were tried before a jury in the District
of South Carolina in February of 2014. 1 The jury convicted Moore
on all four counts against her. Latham was convicted only on
Count Three, with the jury unable to agree on Counts One and
Four. The district court declared a mistrial on Counts One and
Four as to Latham, and the government later dismissed those
charges.
1 Wilkinson pled guilty and Palmer entered a pretrial
diversion program.
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Latham was sentenced to 120 months in prison, and Moore was
sentenced to 180 months. The district court denied appellants’
post-trial motions, and this timely appeal followed.
II.
Moore and Latham’s first contention is that their Fifth
Amendment right to indictment by a grand jury was violated when
the district court, through its instructions to the jury,
constructively amended Counts One and Three of the indictment
against them. According to Moore and Latham, those instructions
allowed the jury to convict them under one provision of
§ 1958(a), which prohibits the use of a “facility” of interstate
commerce in connection with a murder for hire, while they were
charged only under another, covering “travel” in interstate
commerce. For the reasons discussed below, we disagree.
A.
We begin with the background principles that govern a claim
of constructive amendment. The Fifth Amendment of the United
States Constitution provides that “[n]o person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury.” And it is “the
exclusive province of the grand jury” to alter or broaden the
charges set out in an indictment. United States v. Whitfield,
695 F.3d 288, 309 (4th Cir. 2012). Accordingly, it is well
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established that “a court cannot permit a defendant to be tried
on charges that are not made in the indictment against him.”
United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994) (en
banc) (quoting Stirone v. United States, 361 U.S. 212, 217
(1960)).
An impermissible constructive amendment – also referred to
as a “fatal variance” – occurs when the government, usually
through its presentation of evidence or argument, or the
district court, usually through its jury instructions, “broadens
the possible bases for conviction beyond those presented by the
grand jury.” Floresca, 38 F.3d at 710; see also United States
v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). The key inquiry
is whether a defendant has been tried on charges other than
those listed in the indictment. United States v. Allmendinger,
706 F.3d 330, 339 (4th Cir. 2013).
Of particular importance here, when a constructive
amendment claim rests on allegedly erroneous jury instructions,
a reviewing court is to consider the totality of the
circumstances – including not only the instructions and the
indictment but also the arguments of the parties and the
evidence presented at trial – to determine whether a jury could
have “reasonably interpreted” the challenged instructions as
“license to convict” on an unindicted charge. Lentz, 524 F.3d
at 514-15. If not – if a reasonable jury, in light of the full
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context, would not have thought that it was permitted to convict
on a ground not included in the indictment – then no
constructive amendment has occurred. Id. at 515-16. Whether,
under that standard, appellants’ indictment was constructively
amended is a question of law that we review de novo. See
Whitfield, 695 F.3d at 306.
B.
To support federal criminal liability, 18 U.S.C. § 1958(a)
enumerates two distinct and alternative jurisdictional elements,
or links to interstate commerce. Under the “travel prong,” a
defendant may be convicted if he or she “travels in or causes
another . . . to travel in interstate or foreign commerce” in
connection with a murder for hire. Or, alternatively, a
defendant may be convicted under the “facilities prong” if he or
she “uses or causes another . . . to use the mail or any
facility of interstate or foreign commerce.” 18 U.S.C.
§ 1958(a). Under either prong, the government must prove that
the defendant’s conduct was undertaken “with intent that a
murder be committed” for compensation. Id.In this case, the government charged Moore and Latham only
under the travel prong of § 1958(a). Count One of the
indictment alleged that Moore and Latham “did knowingly
conspire, confederate, agree and have a tacit understanding with
each other and with others . . . to travel in, and cause another
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to travel in, interstate commerce, with the intent that a murder
be committed” for compensation. J.A. 41. Likewise, Count Three
charged that the appellants, “as principals, aiders and
abettors, and as co-participants in jointly undertaken criminal
activity, unlawfully and willfully traveled in and caused
another to travel in interstate and foreign commerce, to wit,
travel between Kentucky and South Carolina, with intent that a
murder be committed” for compensation. J.A. 42.
In its closing instructions, the district court first read
the indictment to the jury, advising that the appellants were
charged under the travel prong in Counts One and Three. But –
and here is where the question in this case arises – as it went
on to describe § 1958(a), the court made two references to the
uncharged facilities prong. Specifically, the court stated:
To prove a violation of 18 U.S.C. Section 1958(a), the
Government must prove a defendant, one, traveled or
caused another to travel in interstate commerce [or]
use[d], or cause[d] another person to use the mail or
any facility in interstate commerce; second, with the
intent that a murder be committed; third, as
consideration for the receipt or promise to pay
anything of pecuniary value.
J.A. 1670-71 (emphasis added); see also J.A. 1672-73. The court
also provided the jurors a written copy of its instructions,
including the two references to the facilities prong. No party
objected.
10
Latham and Moore both filed post-trial motions in which
they argued for the first time that the district court had
constructively amended the indictment by mentioning the
facilities prong in its jury instructions. The district court
denied the motions, finding that no constructive amendment had
occurred.
C.
Latham and Moore again urge that the district court
constructively amended Counts One and Three of the indictment
against them by adverting to the facilities prong of § 1958(a)
in its instructions. We acknowledge that in some cases,
instructing a jury on the facilities prong when it is not
charged in an indictment could constitute a constructive
amendment. But under the totality of the circumstances here,
including the jury instructions, the verdict form provided to
the jury, the arguments of the parties, and the evidence, see
Lentz, 524 F.3d at 514–15, we find that the district court’s two
references to the “use of facilities” did not constitute a
constructive amendment.
First, the bulk of the jury instructions properly tracked
the indictment and omitted any mention of the facilities prong.
The court’s opening instructions to the jury described only
travel. In its closing instructions, the court read aloud the
critical portions of the indictment, which charged only travel,
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and it expressly cautioned that the appellants were “not on
trial for any act or crime not contained in the indictment,”
J.A. 1665. The court provided a written copy of its accurate
summary of the indictment to the jurors, as well as a verdict
form that correctly set forth the charges in the indictment.
And the court called special attention to the verdict form,
instructing the jury to use the verdict form, along with the
jury charges, “in a methodical way” to reach its decision. J.A.
1680.
Second, the parties’ arguments focused solely on the travel
prong. Neither the government nor counsel for Moore ever
mentioned “use of facilities” of interstate commerce in opening
or closing arguments. The only reference to “facilitating
interstate commerce” came from counsel for Latham who, in his
closing argument, used that term – but only to describe
Wilkinson’s travel across state lines. J.A. 1618. And in its
closing argument, the government made clear that it was relying
on the travel prong: “[W]hat the law requires is travel in
interstate commerce, and the judge will tell you driving from
Kentucky down to South Carolina covers your interstate commerce.
Sounds like a strange term, but really is crossing state lines.”
J.A. 1554; see also J.A. 1555 (government explaining that
“whether you’re the one that traveled or whether you assist the
people that are traveling . . . you’re equally responsible”).
12
It is true, as the government acknowledges, that the
evidence at trial involved “extensive testimony regarding items
that could be considered facilities of interstate commerce –
that is, phones and computers.” Response Br. at 35 (emphasis in
original). But the appellants’ use of cell phones and computers
to communicate about the plot against Nancy Cannon and to
prepare the hit packet was presented as substantive evidence
that Latham and Moore were involved in the murder-for-hire plan,
not in a way that tied it to the facilities prong of § 1958(a).
Indeed, the term “facilities of interstate commerce” was never
defined for the jury, and the government never suggested that
mere use of technology, independent of its effect on interstate
travel, was a basis for convicting the appellants.
In sum, when the jury instructions, the verdict form, and
the arguments and evidence presented at trial are viewed in
their totality, we find that the jury could not reasonably have
concluded that it was free to convict the appellants under the
uncharged, undefined facilities prong of the murder-for-hire
statute. See Lentz, 524 F.3d at 514–15; see also Allmendinger,
706 F.3d at 339. Accordingly, we hold that the jury
instructions did not constructively amend the indictment in this
case.
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III.
We can dispose of the appellants’ evidentiary challenges
more briefly. First, Moore and Latham assert that the district
court improperly admitted out-of-court statements made by Samuel
Yenawine. And second, they argue that the district court
erroneously admitted “character evidence” as to appellant Moore.
We find no fault with the district court’s evidentiary rulings.
A.
At trial, the government called Tyler Lee Tudor to testify
about statements Yenawine had made to him before committing
suicide. After Yenawine was arrested in April of 2013, Tudor
and Yenawine became cellmates and friends in jail. Tudor
testified that he and Yenawine had discussed Yenawine’s
involvement in a murder-for-hire plot targeting someone
affiliated with the South Carolina Lottery – as Nancy Cannon was
at the time, serving on the South Carolina Lottery Commission.
According to Tudor, Yenawine also had stated that the operation
involved his ex-wife and a banker.
Moore filed a motion in limine seeking to exclude
Yenawine’s statements. The district court denied the motion,
holding that the statements were admissible under the “statement
against interest” exception to the rule against hearsay
evidence. See Fed. R. Evid. 804(b)(3). We review the district
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court’s admission of this evidence for abuse of discretion.
United States v. Lighty, 616 F.3d 321, 351 (4th Cir. 2010).
“[A] statement made by an unavailable declarant is
admissible if it is one that ‘a reasonable person in the
declarant’s position would have made only if the person believed
it to be true’” because it “‘had so great a tendency to . . .
expose the declarant to civil or criminal liability.’” United
States v. Dargan, 738 F.3d 643, 649 (4th Cir. 2013) (quoting
Fed. R. Evid. 804(b)(3)(A)). The statement must be “supported
by corroborating circumstances that clearly indicate its
trustworthiness.” Fed. R. Evid. 804(b)(3)(B).
Moore and Latham contend that the district court abused its
discretion in admitting Yenawine’s statements under the
“trustworthiness” portion of this standard. According to the
appellants, Yenawine’s statements were inherently unreliable,
given that Yenawine might have thought he could “cut a deal to
tell his story” and Tudor may have hoped that his testimony
would result in leniency in his own case. Opening Br. at 44.
But as the district court explained, Yenawine had no reason to
shade the story he told a cellmate, and the appellants cannot
establish that the district court abused its discretion in
finding sufficient corroboration of Yenawine’s statements.
Moore and Latham’s suggestion that the admission of
Yenawine’s statements implicated the Sixth Amendment is likewise
15
without merit. Only “testimonial” statements are excludable
under the Sixth Amendment’s Confrontation Clause, Dargan, 738
F.3d at 650, and we have held that statements by one prisoner to
another are “clearly nontestimonial.” Id. at 650-51 (quoting
Davis v. Washington, 547 U.S. 813, 825 (2006)). The Sixth
Amendment adds nothing to the appellants’ claim, and we find no
error in the admission of Yenawine’s out-of-court statements.
B.
Moore and Latham’s final contention is that the district
court admitted certain “character evidence” in violation of
Federal Rule of Evidence 404, which prohibits use of character
evidence to prove a propensity to engage in particular conduct. 2
Because the appellants did not raise that objection at trial, we
review it only for plain error. United States v. Keita, 742
F.3d 184, 189 (4th Cir. 2014). Thus, we may reverse only on a
finding that (1) there was “error,” (2) that was “plain,”
(3) that “affect[ed] substantial rights,” and (4) that
“seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings.” Johnson v. United States,
520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507
U.S. 725, 732 (1993)).
2 Specifically, Rule 404(a)(1) provides that “[e]vidence of
a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in
accordance with the character or trait.”
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The testimony to which Moore and Latham object primarily
related to Yenawine’s prior conviction for arson, his alleged
involvement in a murder, and Moore’s role as a witness in the
related proceedings. In addition, they contend that the
government improperly alluded to the crime of money laundering
when eliciting testimony related to Latham’s payment of Moore’s
attorney’s fees, and Moore’s parents’ payment of Yenawine’s
attorney’s fees.
Moore and Latham have not established that any of the
testimony to which they object was admitted in “error,” let
alone “plain error.” Indeed, some of the testimony was elicited
by the appellants themselves, through counsel. Moreover, the
record reflects that the district court required the government
to correct any misperceptions engendered by its evidence
relating to Yenawine’s past and the money laundering comment.
So even assuming, arguendo, the existence of plain error, we
could not find the “serious[] [e]ffect[]” on the “fairness,
integrity, or public reputation” of judicial proceedings
required for reversal under plain error review. See Johnson,
520 U.S. at 467; Olano, 507 U.S. at 732.
IV.
For the foregoing reasons, the appellants’ convictions are
AFFIRMED.
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