David Lee Rothgeb v. United States ( 1986 )

HENLEY, Senior Circuit Judge.

David Lee Rothgeb was found guilty of the murders of his wife and daughter, in violation of 18 U.S.C. § 1111. The murders occurred while the family was on a canoe trip in the Ozark National Scenic River-ways.¹ He was sentenced to life imprisonment for the first degree murder of his wife, April Rothgeb, and was sentenced to two hundred ten years imprisonment for the second degree murder of his daughter, Windy Rothgeb. Rothgeb appeals his jury convictions arguing that the evidence was insufficient to convict him, that the trial court² erred in admitting prejudicial evidence, and that the sentence of two hundred ten years imprisonment for second degree murder is outside the statutory limits. We affirm.

Rothgeb first argues that the trial court erred in denying his motions for acquittal, which were submitted at the close of all the evidence and after the jury verdict was returned. In reviewing an appeal from a jury verdict for insufficiency of the evidence, we view the evidence in the light most favorable to the government and give it the benefit of all reasonable inferences that may logically be drawn from the evidence. United States v. Netz, 758 F.2d 1308, 1310 (8th Cir.1985). The jury’s verdict will be overturned only if the evidence is such that a reasonable minded jury must have a reasonable doubt as to the existence of one of the essential elements of the crime. Id.

Rothgeb argues that the evidence was insufficient to support his conviction because the government failed to prove that the deaths were a result of murder, and not accidental drownings, and that, if a crime was committed, he did it. The government argued that Rothgeb planned the murder of his wife so he could collect insurance money and go live with his lover, taking his daughter with him. The government theorized that the murder of Windy was not planned, but that Windy saw the murder of her mother and that Rothgeb then killed her as well.

We forego as unnecessary detailed discussion of the evidence but briefly sketch the main facts.

The family started the float trip down the Upper Jacks Fork River Saturday morning, June 16, 1984. There was evidence that April and Windy did not want to go on the float trip, but that Rothgeb insisted on the trip. According to Rothgeb’s testimony, the family floated down the river until about three o’clock in the afternoon. They then stopped and set up camp on a gravel bar across from the Dark Hollow Hole, a swimming hole which was about eight to ten feet deep. The family swam for a while, ate dinner, and then went for another swim. Both Windy and April were good swimmers. The women then decided to change out of their swimsuits. Windy, who was fifteen years old, was embarrassed to change her clothes in front of her father. He stated that she could not change in the tent because a cat had urinated in the tent and it smelled terrible. He went upstream to get some firewood while Windy and April changed clothes. When he returned the women were gone. He noticed that their swimsuits were hanging on a line. He changed his clothes and then waited for the women to return. After a while he walked downstream a short distance looking for them, calling their names and shouting. .He returned when it was getting dark. He then built up the fire in case they returned, and around 9:00 o’clock walked upstream three-fourths of a mile to the Bunker Hill Camp. He arrived there around midnight and obtained help.

Park rangers started searching that night for the two women. When they came to the camp in the early hours of the morning they found only one swimsuit on the line; April’s swimsuit was found in the grub box on top of her husband’s swimsuit. The camp site was not in disarray, and there was no appearance, of a struggle having taken place. No footprints were found outside a fifty yard radius on the gravel bar. No footprints were found on a gravel bar where Rothgeb told the officers he had walked when looking for his wife and child. No ranger who entered the tent smelled cat urine there. Five men, camping approximately one-fourth of a mile below the Ro-thgeb campsite, said they neither saw Ro-thgeb nor heard him calling for his wife and child that evening. There was evidence that it usually takes one-half hour in daylight to walk from the Rothgeb campsite to Bunker Hill; it took Rothgeb three hours that night.

It was not until the following morning that the bodies of April and Windy, fully clothed, were found. April’s body was found three-fourths of a mile downstream from the Rothgeb camp, caught on a root-wad. About two hundred fifty — three hundred yards downstream from the Rothgeb camp the body of Windy was found in an eddy, out of the mainflow of the river. Windy’s glasses were found in water twenty-four inches deep, approximately twenty-five yards downstream from the family camp.³ The bodies of both women had various cuts, scrapes and bruises, the causes of which were disputed at trial. Both women died by drowning, but it could not be determined whether they were conscious at the time they drowned. Neither woman had been sexually assaulted.

Rothgeb testified that he and April had discussed getting a divorce; however, with the exception of one of his friends, no one else, including April’s parents and friends, was aware that there were any marital problems or plans for a divorce. Rothgeb had a lover, Kitty Eldridge, who lived in North Carolina. He had met her in November, 1983, approximately seven months before the murders occurred. He had communicated with her frequently and had visited her on two occasions. The second visit was during the last week of May, two and one-half weeks before the murders. The day before the float trip Rothgeb talked with Kitty four different times on the telephone.

The evidence showed that Kitty had the impression from Rothgeb that the float trip was to be the last family trip before the divorce, and she had told a friend that Windy and Rothgeb were coming to live with her in North Carolina. Rothgeb’s letters to Kitty also suggested that he and Windy were going to move to North Carolina and live with Kitty. It was not likely that Rothgeb could have easily gotten custody of his daughter. Windy was April’s only child, and April had had a tubal ligation and could not have any more children.

On April 24, 1984, less than two months before her murder, a $100,000.00 insurance policy was purchased on April’s life. Before 1984 the Rothgebs had no insurance on April’s life other than a $3,000.00 policy through Rothgeb’s employer. No mention was made to the insurance salesman of any plans for divorce. David Rothgeb was the primary beneficiary of this policy. Within days of his wife’s death he had contacted the insurance company.

As indicated, we have set out only some of the facts involved in this case. We have not set out all of the inconsistencies in Rothgeb’s story, the conflicting statements he made to various people, the experts’ opinions as to how the women incurred the injuries found on their bodies, and the other circumstantial evidence which supports a finding of guilt.

Rothgeb argues that there were two equally reasonable inferences, one of guilt and one of innocence, and therefore the jury must have had a reasonable doubt. We disagree that there were two equally reasonable inferences. The jury’s verdict was supported by substantial evidence, and we do not believe that the jury must have had a reasonable doubt of Rothgeb's guilt. The government did not have to prove Rothgeb’s guilt beyond any possible doubt, only beyond reasonable doubt. The trial court did not err in denying the motions for acquittal.

Rothgeb next argues that the trial court erred in admitting the testimony of Trooper Horst. The trial court has broad discretion in determining what evidence can be admitted, and its decision will be overturned on appeal only if there was an abuse of discretion. United States v. Swarek, 656 F.2d 331, 337 (8th Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1981). Trooper Horst was present when Rothgeb took a polygraph examination and was asked three times, in slightly different context, whether he had killed his wife and child. At trial, no mention was made of this polygraph examination. Horst testified only that he was present during an interrogation when Rothgeb was asked the questions, and that he observed that for each question Rothgeb would hold his breath for five to fifteen seconds, reply no, and then pant like a dog. He also stated that Rothgeb sweated profusely during the questioning.

Rothgeb argues that the probative value of the testimony was outweighed by the unfair prejudicial effect. See Fed.R. Evid. 403. He argues that the government offered the evidence to prove consciousness of guilt, but that the evidence did not support an inference of guilt and therefore it should not have been admitted. He compares the evidence of his demeanor to evidence of flight from the scene of the crime. See United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.1977) (flight evidence is generally viewed as an admission by conduct which gives rise to a consciousness of guilt. It should be admitted only if an inference of consciousness of guilt can be fairly made from evidence). One’s demeanor during questioning is not necessarily comparable to the prejudicial effect created by evidence of flight. Heavy breathing and sweating during an interrogation are not admissions, and we do not believe the conduct necessarily creates an inference of consciousness of guilt.⁴ An innocent person might be shocked, appalled and upset if he was questioned whether he had murdered his family, and he might react in exactly the same way. The jury may or may not have believed that Rothgeb’s reactions indicated that he was lying. There was no per se unfair prejudicial effect.

Rothgeb also argues that the evidence should not have been admitted since his demeanor during questioning is less probative than an outright refusal to take a polygraph test, yet a refusal is not admissible evidence. Although the results of a polygraph examination and a refusal to take a polygraph may not be admissible, the responses to questions asked during the polygraph are admissible evidence. See Wyrick v. Fields, 459 U.S. 42, 48 n. *, 103 S.Ct. 394, 396 n. * 74 L.Ed.2d 214 (1982). We believe that evidence concerning a defendant’s demeanor during the questioning is also admissible, particularly when there is no mention that the questioning occurred during a polygraph examination.

Finally, Rothgeb argues, for the first time, that the evidence should not have been admitted because the testimony was false and he had no way to impeach Horst’s credibility without bringing in evidence about the polygraph. The evidence that Rothgeb cites does not fully support this allegation, and it does not support a demand for a new trial. We are not persuaded that the district court abused its discretion in admitting Horst’s testimony. Moreover, if there was error in admitting the evidence, it was harmless beyond a reasonable doubt. Rothgeb’s demeanor during this questioning appears to have been an insignificant part of the government’s case, which, though largely circumstantial, was very strong indeed.

The last issue raised by Rothgeb concerns the legality of his sentence. For the first degree murder Rothgeb was sentenced to life imprisonment, and he will be eligible for parole consideration after ten years. See 18 U.S.C. §§ 1111(b), 4205(a). For the second degree murder he was sentenced to two hundred ten years imprisonment under 18 U.S.C. § 1111(b). The trial court held that Rothgeb will not be eligible for parole consideration until he has served sixty-nine years of the sentence. See 18 U.S.C. § 4205(b)(1). The two sentences are to run consecutively.⁵ Rothgeb argues that his sentence for second degree murder is outside the statutory limit because Congress intended to place life imprisonment as the penalty ceiling for second degree murder under § 1111(b), and because the court could not postpone his parole eligibility date past the ten years provided in § 4205(a).

Section 1111(b) allows the court to impose “any term of years or life imprisonment” for second degree murder. The language of the statute is unambiguous. “Any term of years” means just what it states; there is no limit on the years the court can impose. To hold otherwise makes the use of the words “any” and “or” superfluous. If Congress had intended that there be a limit on the number of years it could have so stated. See Giblin v. United States, 523 F.2d 42, 45 (8th Cir. 1975), cert. denied, 424 U.S. 971, 96 S.Ct. 1470, 47 L.Ed.2d 739 (1976) (sentence of one hundred years for kidnapping was not outside the statutory limits since the statute, 18 U.S.C. § 1201, provided for “imprisonment for any terms of years or for life.” United States v. O’Driscoll, 761 F.2d 589, 597-98 (10th Cir.1985) (federal kidnapping statute, which provides for “imprisonment for any term of years or for life,” permits a sentence of three hundred years). The sentence of two hundred ten years was within the statutory limits.

Section 4205(a) provides that “a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law.” If this was the only applicable statute, then Rothgeb would be eligible for parole consideration in ten years for both the first degree murder and the second degree murder sentence. However § 4205(b) creates an exception to § 4205(a). Section 4205(b) provides that when “the ends of justice and the best interest of the public require that the defendant be sentenced to imprisonment for a term exceeding one year," the court “may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court____”

Rothgeb argues that § 4205(b)(1) does not permit the court to extend the eligibility date for parole beyond the ten years provided in § 4205(a); it allows only for an earlier release. Although the statute clearly and unambiguously provides that the court may require that the defendant serve up to one-third of the maximum sentence imposed, he argues that this was not the intent of Congress. He believes that the legislative history indicates that the purpose of subsection (b) was to permit only earlier parole releases. See S.Rep. No. 2013, 85th Cong., 2d Sess. 2, reprinted in 1958 U.S.Code Cong. & Ad.News 3891.

The starting point for construing a statute is the language of the statute itself. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Unless there is a clearly expressed legislative intention to the contrary, the language of the statute must ordinarily be regarded as conclusive. Id. Here, the issue of whether the court could postpone the parole eligibility date was not directly addressed in the legislative history, and there are only vague references as to the intent of Congress. Arguments as to the general intent of the Congress cannot overturn the specific language of the statute.

The trial court is permitted to require that a defendant serve longer than ten years before he is eligible for parole when it is in the interest of justice. See O’Driscoll, 761 F.2d at 596 (affirmed sentence that defendant was not eligible for parole under 18 U.S.C. § 4205(b)(1) until he served ninety-nine years of a three hundred year sentence); United States v. Young-Buffalo, 705 F.2d 468 (9th Cir.1983) (unpublished opinion) (sentence requiring the defendant serve one-third of his ninety-nine year sentence, under 18 U.S.C. § 4205(b)(1), was lawful), cert denied, 464 U.S. 1071, 104 S.Ct. 979, 79 L.Ed.2d 217 (1984); but see United States v. Fountain, 768 F.2d 790, 799 (7th Cir.) (in dicta the court stated that the apparent purpose of § 4205(b)(1) is to allow earlier eligibility for parole, not to extend the date), modified, 777 F.2d 345 (7th Cir.1985).

There is, of course, the possibility that Rothgeb will never be granted parole on his life sentence. Even so, it is at least arguable that in a sense the sentencing result here may be anomalous in that Ro-thgeb must serve a longer time before parole eligibility for the lesser crime than for the greater crime. However, the sentence of sixty-nine years before parole eligibility is authorized by statute, and we are not inclined to upset it. In coming to this conclusion, we recognize that the sentence is an extremely long one and we wish to emphasize that our decision here is without prejudice to the right of Rothgeb to seek reduction of sentence in the district court under the provisions of Fed.R.Crim.P. 35(b).

From what has been said, it follows that the judgments of the district court convicting and sentencing appellant should be, and they are, affirmed.

1 . In the Riverways area, the United States has concurrent jurisdiction with the State of Missouri.

2 . The Honorable H. Kenneth Wangelin, United States Senior District Judge, Eastern District of Missouri.

3 . Both parties appear to agree that Windy drowned in the area where her glasses came off. The government argued that her father drowned her here. Rothgeb suggested in his brief that Windy tried to save her mother from an accidental drowning here, but was overcome by her mother’s superior size and strength. At other times, Rothgeb has suggested that the five men camped below the family campsite had something to do with the deaths of his wife and daughter. Rothgeb, of course, has no duty to explain what happened; the burden of proof is on the government.

4 . The government wanted to present evidence that Rothgeb was deliberately attempting to thwart the results of the polygraph examination by irregular breathing patterns. Had the court allowed this, Rothgeb’s claim that his demeanor was used to prove consciousness of guilt might be more persuasive, and we might have been inclined to agree that the prejudicial effect outweighed the probative value. However, the trial court did not allow this and evidence of the polygraph examination itself was never admitted into evidence.

5 ., Rothgeb has not raised the issue of whether a sentence for a term of years can run consecutively to a life sentence, and therefore we need not discuss it.