United States v. Pabellon

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4060
TOMMY PABELLON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BOB HARRY FOWLER, a/k/a Richard
B. Fowler, a/k/a Slim Fowler, a/k/a
No. 98-4088
Richard Bob Fowler, a/k/a Bob
Harris Fowler, a/k/a Georgia Slim,
a/k/a Georgia Slim Fowler, a/k/a
Georgia Fowler,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-97-487)
Argued: March 5, 1999
Decided: May 14, 1999
Before WILLIAMS and MICHAEL, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Randall Scott Hiller, RANDALL S. HILLER, P.A.,
Greenville, South Carolina, for Appellant Pabellon; Richard Walter
Vieth, Spartanburg, South Carolina, for Appellant Fowler. Harold
Watson Gowdy, III, Assistant United States Attorney, Greenville,
South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United
States Attorney, Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
On July 22, 1997, Tommy Pabellon, Bob Harry Fowler, and Dar-
rell Young (Defendants) were indicted by a federal grand jury for
their role in the shooting death of Ricky Samuel, 1 a Government
_________________________________________________________________
1 All three Defendants were named in a four-count indictment. Count
One charged Defendants with murdering Samuel to prevent his atten-
dance and testimony at Pabellon's trial on federal drug charges in viola-
tion of 18 U.S.C.A. § 1512(a)(1)(A) (West Supp. 1999) and aiding and
abetting the same in violation of 18 U.S.C.A. § 2 (West 1969). Count
Two charged Defendants with murdering Samuel in retaliation for his
having provided the Government with information regarding Pabellon's
drug operations in violation of 18 U.S.C.A. § 1513(a)(1)(B) (West Supp.
1999) and aiding and abetting the same in violation of 18 U.S.C.A. § 2.
Count Three charged Defendants with murdering Samuel in retaliation
for his having testified before the federal grand jury that indicted Pabel-
lon on federal drug charges in violation of 18 U.S.C.A. § 1513(a)(1)(A)
(West Supp. 1999) and aiding and abetting the same in violation of 18
U.S.C.A. § 2. Count Four charged Defendants with using or carrying a
firearm during and in relation to a drug trafficking crime in violation of
18 U.S.C.A. § 924(c) (West Supp. 1999).
2
informant who, at time of his death, had provided the Government
with information regarding Pabellon's drug operations, had testified
before the federal grand jury that indicted Pabellon on federal drug
charges, and had been scheduled to be the key Government witness
at Pabellon's then-upcoming trial on federal drug charges. Young
pleaded guilty to one count of aiding and abetting the murder of Sam-
uel and agreed to testify against Pabellon and Fowler. After a jury
trial, Pabellon and Fowler (Appellants) were found guilty on all
counts and sentenced to four life sentences, each to run concurrently.
On appeal, both Pabellon and Fowler contend that the district court
erred in denying their motion to sever the trial. In addition, Pabellon
contends that the district court erred in admitting into evidence the
redacted statement of a deceased unindicted co-conspirator and in
refusing to call as a court's witness an individual who had recanted
his earlier statement to the Government. Finally, Fowler contends that
the evidence was insufficient to support his convictions. With the
exception of two of Fowler's insufficiency of the evidence claims, we
find no reversible error. As for those two claims, we agree with Fow-
ler that the Government failed to introduce any evidence that he mur-
dered Samuel in retaliation for Samuel having provided the
Government with information regarding Pabellon's drug operations
(Count Two), or in retaliation for Samuel having testified before the
federal grand jury that indicted Pabellon on federal drug charges
(Count Three). Rather, the evidence established only that Fowler mur-
dered Samuel to prevent Samuel's attendance and testimony at Pabel-
lon's trial on federal drug charges (Count One). Accordingly, while
we affirm Pabellon's convictions in whole, we affirm Fowler's con-
victions in part and reverse in part.
I.
In 1995, Ricky Samuel was indicted by a federal grand jury for his
role in a large drug conspiracy in Spartanburg, South Carolina. In
exchange for his being allowed to plead guilty to simple possession
of cocaine, Samuel agreed to cooperate with local and federal law
enforcement agents in their continuing investigation into drug traf-
ficking in the greater Spartanburg area.
In February 1996, Samuel purchased, pursuant to an undercover
police operation, crack cocaine from Pabellon. During the transaction,
3
Pabellon's friend, Bryant Woodruff, remained in the car. The transac-
tion was recorded and observed by local and federal law enforcement
agents. No arrests were made. On March 8, 1996, Samuel participated
in a second controlled buy. On this occasion, Samuel purchased crack
cocaine from Pabellon and Brian Freeman. Once again, the transac-
tion was recorded and observed by local and federal law enforcement
agents. This time, however, Pabellon and Freeman were arrested
shortly after making the exchange.
Pabellon was subsequently indicted by a federal grand jury, before
which Samuel testified, for conspiracy to possess with intent to dis-
tribute crack cocaine and distribution of crack cocaine. Freeman was
charged with possession with intent to distribute crack cocaine.
Woodruff, however, was not charged with any violation stemming
from his participation in the February drug transaction. Pursuant to
the U.S. Attorney's Office's "open file" policy, Pabellon and Freeman
were informed that Samuel had been working as a Government infor-
mant.
On May 14, 1996, Samuel's body was found near a pond outside
Greenville, South Carolina. According to the autopsy report, Samuel
had been shot twice in the back of the head. Although the Govern-
ment no longer had its key witness, the case against Pabellon went to
trial in July of 1996. After one day of trial, Pabellon pleaded guilty
to conspiracy. Freeman refused to plead guilty and was eventually
convicted of possession with intent to distribute crack cocaine.
Shortly after Freeman was convicted, he approached the Govern-
ment with information about Samuel's murder.2 Based on the infor-
mation provided by Freeman, the Government began investigating his
allegations that Pabellon had Samuel killed to prevent his attendance
at Pabellon's drug conspiracy trial. During the course of the Govern-
ment's investigation, federal agents interviewed Woodruff, who was
awaiting trial on unrelated drug charges. During the interview, Wood-
ruff provided oral and written statements to the Government concern-
ing his involvement in the murder of Samuel. Woodruff stated that
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2 Freeman also had information, which he shared with the Government,
concerning a threat against a federal prosecutor and a Spartanburg
County Sheriff's deputy.
4
Pabellon enlisted his aid to find an individual to murder Samuel.
Woodruff asked his friend Darryl Young for help. Young in turn
located Bob Harry Fowler. According to Woodruff, Pabellon gave
him $15,000 to kill Samuel. Woodruff gave the $15,000 to Young.
Young kept $10,000 and paid Fowler $5,000. In April of 1997,
Woodruff hanged himself in federal prison.
On July 22, 1997, Fowler, Pabellon, and Young were named in a
four-count indictment. Count One charged Defendants with murder-
ing Samuel to prevent his attendance as a witness in federal court in
violation of 18 U.S.C.A. § 1512(a)(1)(A) (West Supp. 1999) and aid-
ing and abetting the same in violation of 18 U.S.C.A. § 2 (West
1969). Count Two charged Defendants with murdering Samuel in
retaliation for his providing to a law enforcement officer information
relating to the commission of a federal offense in violation of 18
U.S.C.A. § 1513(a)(1)(B) (West Supp. 1999) and aiding and abetting
the same in violation of 18 U.S.C.A. § 2. Count Three charged Defen-
dants with murdering Samuel in retaliation for his giving information
in an official proceeding in violation of 18 U.S.C.A. § 1513(a)(1)(A)
(West Supp. 1999) and aiding and abetting the same in violation of
18 U.S.C.A. § 2. Count Four charged Defendants with using or carry-
ing a firearm during and in relation to a drug trafficking crime in vio-
lation of 18 U.S.C.A. § 924(c) (West Supp. 1999). Young pleaded
guilty to one count of aiding and abetting the murder of Samuel and
agreed to testify for the Government.
On September 30, 1997, the Government filed a motion in limine
seeking to admit into evidence a redacted portion of Woodruff's state-
ment pursuant to Rule 804(b)(3) of the Federal Rules of Evidence
(statement against penal interest). The district court withheld its ruling
on the motion until Pabellon's and Fowler's trial, which began on
November 12, 1997. Ultimately, the district court, over objection,
allowed the Government to put into evidence the following redacted
portion of Woodruff's statement:
X came to me in March of 1996 and asked me if I knew
anyone that could have Samuel killed. I said no, but I could
see. I contacted Darrell Young and asked Young. Young got
back to me in a couple of months and said he had someone
5
for the job. I went back to X, got the money, I gave the
money to Darrell Young.
(J.A. at 613-14.)
At trial, the Government called Freeman as a witness. Freeman tes-
tified that Pabellon said that he was going to "get" Samuel, because
he knew that Samuel had "set him up." (J.A. at 271.) According to
Freeman, Pabellon also asked his attorney, Al Taylor, what would
happen if Samuel did not show up for trial. In response, Taylor alleg-
edly told Pabellon that the Government would no longer have a case
against him. In addition, Freeman testified that Pabellon suggested
that he (Freeman) kill Samuel so that the Government would not have
a case against him either. Freeman also testified that he overheard
Pabellon and Woodruff having a discussion on the night Pabellon
pleaded guilty. Freeman testified that he heard Pabellon say "Damn
man, we killed that damn boy for nothing. I went up there and pled
guilty to ten years today." (J.A. at 296.)
Pabellon's wife, Sonji, also testified for the Government. Sonji
stated that Pabellon and Woodruff sold drugs together and were close
friends. After Pabellon's arrest, Sonji testified that Pabellon knew that
Samuel had set him up, and that Pabellon showed Woodruff the evi-
dence the Government had obtained against him, which included a
report detailing Samuel's role as an informant. Sonji also testified that
during one visit to Taylor's office, Pabellon and Taylor discussed
other cases where witnesses did not show up for court, including a
case where a witness was killed. In addition, Sonji testified that in late
April or early May of 1996, Pabellon removed $15,000 from their
safe. Finally, Sonji testified that after Samuel's body was found, she
heard Pabellon tell Woodruff, "Well, I paid . . . fifteen thousand dol-
lars and you never did do nothing." (J.A. at 380.)
Xavier Barnette testified that Pabellon came to him in the spring
of 1996 and told him that Samuel was a "snitch," (J.A. at 242), and
asked him to "handle" the situation, (J.A. at 244). Barnette, who is
six-feet eight inches tall and had a reputation for roughing up people,
testified that the common meaning on the street for the term "handle"
was to "send a message," "break an arm," or "beat them up bad." (J.A.
at 244.) Barnette did nothing to Samuel and two weeks later Pabellon
6
informed Barnette, "Man, I got to have something done about that
soon." (J.A. at 245.) Barnette also testified that Pabellon made a
motion with his hands -- that he (Barnette) interpreted to mean kill
Samuel -- and stated, "Man, somebody need to do that kid." (J.A. at
245.) Barnette informed Pabellon that he, Barnette, was not a killer.
Young, pursuant to his plea agreement, testified that he and Wood-
ruff were best friends. Young testified that Woodruff came to him in
the spring of 1996 and asked if Young could have Samuel killed.
After several more requests, Young agreed to help find someone to
kill Samuel. Young located Fowler at a men's clothing store in Green-
ville where Fowler was working. Young told Fowler that he had a
friend in trouble with the law and that somebody (Samuel) was going
to "finger" the friend on a drug conspiracy. Young informed Fowler
that he needed this person taken care of. After Young promised to
provide Fowler with transportation, Fowler agreed to kill Samuel for
$5,000.
Young testified that he introduced Fowler to Lillie Young (Lillie),
who agreed to lend Fowler her turquoise-colored Mazda MX-6. Now
that he had transportation, Fowler told Young that he would drive to
Samuel's home, where he would introduce himself to Samuel as the
Reverend James. Fowler believed that he could get close to Samuel
posing as a reverend because most people trust religious people.
Young also testified that Fowler always carried a blue saddlebag that
contained a Bible and a gun. Fowler later reported to Young that
Samuel believed that he was a minister and that he (Fowler) had a
chance to kill Samuel at his home in Spartanburg while they were
praying, but that someone walked in on them.
On May 14, 1996, Fowler paged Young -- Fowler's code for pag-
ers was "666" -- from a car wash to tell Young that he had killed
Samuel. Young and Fowler met later that day at a nightclub, at which
time Young paid Fowler $5,000. At that meeting, Fowler told Young
that he had picked Samuel up at the Probation Office in Spartanburg.
After driving Samuel to a rural area, he placed a gun to Samuel's head
and walked him down to a lake. Fowler told Samuel that he was a
professional hit man from Alabama. When Samuel pleaded for his
life, Fowler told him to "quit begging," (J.A. at 91), and to keep mov-
ing so that he could "get it over with," (J.A. at 448). Fowler told
7
Young that he shot Samuel twice in the back of the head. After dis-
cussing the details of the murder, Fowler and Young returned the
Mazda MX-6 to Lillie.
Lillie testified that Young and Fowler borrowed her turquoise-
colored Mazda MX-6 several weeks prior to May 14, 1996. She also
testified that when Young and Fowler returned her car on May 14,
1996, it was unusually clean. After Young left, Lillie and Fowler went
on a shopping spree. While shopping, Fowler, although unemployed
at the time, spent nearly $1,000 in cash.3 Among other things, Fowler
spent $500 on a rental car.4
Tameka Shell testified that she was Samuel's girlfriend at the time
of his murder. Shell testified that 2-3 weeks before Samuel was killed,
a man calling himself Reverend James came to Samuel's house.
Among other things, the Reverend James gave Samuel a Bible. She
identified Fowler as the person posing as the Reverend James.5 Shell
also testified that on the morning of May 14th, Fowler, posing as the
Reverend James, drove Samuel to the Probation Office in a turquoise-
colored Mazda MX-6.
Detective Larry Bellew testified that during the search of Samuel's
home, he found a Bible. Fingerprints lifted from that Bible were com-
pared to a known sample of Fowler's fingerprints. The fingerprints
from the Bible matched Fowler's. Detective Eugene Donohue testi-
fied that a subsequent search of Fowler's home produced a blue sad-
dlebag and a scrapbook with Young's phone number. Detective
Donohue also testified that Fowler's residence was near the pond
where Samuel's body was found.
At trial, the defense argued, among other things, that Woodruff had
Samuel killed and that Young was the triggerman. On November 18,
_________________________________________________________________
3 Fowler quit his job selling men's clothing, where he had earned only
$5 an hour, shortly after agreeing to kill Samuel. Fowler did not start
working again until January of 1997.
4 The Government introduced a receipt from the car rental office where
Lillie Young took Fowler to rent the car.
5 Samuel's brother, Jerome, also identified Fowler as the individual
who had come to their home purporting to be the Reverend James.
8
1997, the jury rejected the defense's theory of the case and returned
a guilty verdict against both Fowler and Pabellon on all four counts
of the indictment. On January 21, 1998, Fowler and Pabellon were
sentenced to four life sentences, each to run concurrently. This appeal
followed.
On appeal, Appellants raise several challenges to their convictions.6
Both contend that the district court erred in denying their motion to
sever the trial. In addition, Pabellon contends that the district court
erred in admitting into evidence the redacted statement of Woodruff
and in refusing to call as a court's witness an individual who had
recanted his earlier statement to the Government. Finally, Fowler con-
tends that the evidence was insufficient to support his convictions.
We address these arguments in turn.
II.
On appeal, Appellants first argue that the district court erred in
denying their motion to sever the trial. In particular, they contend that
there was no basis for a joint trial under Rule 8 of the Federal Rules
of Criminal Procedure. In the alternative, Pabellon argues that the
joint trial was unduly prejudicial and, therefore, should have been
severed pursuant to Rule 14 of the Federal Rules of Criminal Proce-
dure. Severance is a matter "committed to the sound discretion of the
district court." United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir.
1986). Thus, the denial of a motion to sever should not "be disturbed
unless the denial of a severance deprives the defendants of a fair trial
and results in a miscarriage of justice." United States v. Becker, 585
F.2d 703, 706 (4th Cir. 1978).
Despite Appellants' contentions to the contrary, Rule 8(b) of the
Federal Rules of Criminal Procedure provided a basis for the joint
trial in this case. The test for joinder under Rule 8(b) is simply
whether defendants "are alleged to have participated in the same act
or transaction or in the same series of acts or transactions." Fed. R.
Crim. P. 8(b). Here, both Pabellon and Fowler are alleged to have par-
ticipated in the murder of Samuel to prevent his testimony at Pabel-
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6 Appellants do not challenge their sentences on appeal.
9
lon's trial. Pabellon initiated the murder for hire scheme and Fowler
carried out the scheme. As a result, the requirements of Rule 8 were
satisfied in this case.
Moreover, it is worth noting that Pabellon and Fowler were
indicted together. In light of Rule 8, "[t]here is a preference in the
Federal System for joint trials of defendants who are indicted
together." Zafiro v. United States, 506 U.S. 534, 537 (1993). Thus,
"[b]arring special circumstances, individuals indicted together should
be tried together." United States v. Brugman , 655 F.2d 540, 542 (4th
Cir. 1981); see also United States v. Shuford , 454 F.2d 772, 775 (4th
Cir. 1971) (same).
One such special circumstance is contained in Rule 14 of the Fed-
eral Rules of Criminal Procedure. Rule 14 provides that a district
court may grant a severance of defendants "[i]f it appears that a
defendant or the government is prejudiced by a joinder of . . . defen-
dants in an indictment." Fed. R. Crim. P. 14. The mere showing of
some prejudice, however, is not enough to establish a special circum-
stance. See Zafiro, 506 U.S. at 538-40. Rather, a miscarriage of jus-
tice must occur to require a severance. See Richardson v. Marsh, 481
U.S. 200, 206-11 (1987).
Here, Pabellon argues that he was prejudiced by the joint trial and,
therefore, that the district court should have severed the trial pursuant
to Rule 14. Specifically, Pabellon contends that there was more evi-
dence, including physical evidence, against Fowler than there was
against him and that he would have had a better chance of acquittal
if tried separately. As this Court noted in United States v. Riley, 991
F.2d 120 (4th Cir. 1993), however, there is no right to severance
merely because the evidence against one defendant is stronger or
weaker than the evidence against another defendant. See id. at 125.
Moreover, a miscarriage of justice does not occur simply because a
separate trial would offer a defendant a better chance of acquittal. See
United States v. Spitler, 800 F.2d 1267, 1271-72 (4th Cir. 1986). In
sum, there is no evidence that "a joint trial would [have] compro-
mise[d] a specific trial right of one of the defendants, or prevent[ed]
the jury from making a reliable judgment about guilt or innocence."
Zafiro, 506 U.S. at 539. As a result, the requirements of Rule 14 were
not satisfied in this case.
10
III.
Next, Pabellon contends that the district court erred in admitting
into evidence the redacted statement of a deceased unindicted co-
conspirator.7 Specifically, Pabellon argues that the statement, made by
Bryant Woodruff, was not admissible pursuant to Rule 804(b)(3) of
the Federal Rules of Evidence as a statement against penal interest
because the statement was clearly exculpatory.8 A district court's evi-
_________________________________________________________________
7 The statement was redacted pursuant to Bruton v. United States, 391
U.S. 123 (1968) (holding that the admission of an accomplice's state-
ments against interest that also incriminated the defendant violated the
defendant's Confrontation Clause rights where the declarant was unavail-
able for cross examination).
8 Pabellon does not argue that the admission of the redacted statement
violated the Confrontation Clause. In Ohio v. Roberts, 448 U.S. 56(1980), the Supreme Court noted that a statement is admissible and does
not violate the Confrontation Clause where there is a necessity (i.e., the
witness is unavailable) and the statement bears sufficient "indicia of reli-
ability" in that it falls within a "firmly rooted hearsay exception," or has
"particularized guarantees of trustworthiness" such that "there is no
material departure from the reason of the general rule." Id. at 65-66. In
Lee v. Illinois, 476 U.S. 530 (1986), the Supreme Court noted that con-
fessions have a rebuttable "presumption of unreliability" and do not fall
within a "firmly rooted" hearsay exception. Id. at 543. In footnote 5, the
Court also seemed to reject a broad application of the statement against
penal interest exception to allow the admissibility of confessions, observ-
ing that the "concept defines too large a class for meaningful Confronta-
tion Clause analysis." Id. at 544 n.5. After Lee, the question remains
whether statements against penal interest can qualify as a firmly rooted
hearsay exception as a class or whether each statement must qualify
through its particularized guarantee of trustworthiness. Cf. United States
v. Moses, 148 F.3d 277, 281 (3d Cir. 1998) (declining to decide if firmly
rooted), cert. denied, 119 S. Ct. 1047 (1999); United States v. Keltner,
147 F.3d 662, 671 (8th Cir.) (firmly rooted), cert. denied, 119 S. Ct. 574(1998); LaGrand v. Stewart, 133 F.3d 1253, 1268-69 (9th Cir.) (suggest-
ing firmly rooted in dicta), cert. denied, 119 S. Ct. 422 (1998); Neuman
v. Rivers, 125 F.3d 315, 319 (6th Cir.) (firmly rooted), cert. denied, 118
S. Ct. 631 (1997); Earnest v. Dorsey, 87 F.3d 1123, 1131 (10th Cir.
1996) (not firmly rooted); United States v. Trenkler, 61 F.3d 45, 62 (1st
Cir. 1995) (assuming firmly rooted); United States v. Matthews, 20 F.3d
538, 544-46 (2d Cir. 1994) (declining to decide if firmly rooted); United
States v. Flores, 985 F.2d 770, 775-76 (5th Cir. 1993) (not firmly
rooted); United States v. York, 933 F.2d 1343, 1363 (7th Cir. 1991)
(firmly rooted). That issue is not before us today.
11
dentiary rulings are reviewed under the narrow abuse of discretion
standard. See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir.
1997).
A statement is against interest if, "at the time of its making[, it] . . .
so far tended to subject the declarant to civil or criminal liability . . .
that a reasonable person in the declarant's position would not have
made the statement unless believing it to be true." Fed. R. Evid.
804(b)(3). Moreover, as the Supreme Court made clear in Williamson
v. United States, 512 U.S. 594, 603 (1994),"[e]ven statements that are
on their face neutral may actually be against the declarant's interest."
The district court allowed the Government to admit into evidence
the following statement:
X came to me in March of 1996 and asked me if I knew
anyone that could have Samuel killed. I said no, but I could
see. I contacted Darrell Young and asked Young. Young got
back to me in a couple of months and said he had someone
for the job. I went back to X, got the money, I gave the
money to Darrell Young.
(J.A. at 613-14.) Despite Pabellon's contentions to the contrary, the
admitted statement was clearly inculpatory. In the statement, Wood-
ruff admitted that he aided and abetted the murder of Samuel. Indeed,
he admits that he actually helped find the hit man who killed Samuel.
As a result, the statement actually subjected Woodruff to criminal lia-
bility.
Moreover, in December of 1996, when Woodruff made his state-
ment, he had not been arrested or indicted for the murder of Samuel.
In fact, no witness had yet come forward implicating Woodruff in the
murder. Rather, Woodruff came to the authorities on his own initia-
tive. In addition, the Government made no offer of leniency or immu-
nity to Woodruff in exchange for his statement. As such, unlike a
defendant who is caught red-handed and then begins to cooperate in
order to get a deal, Woodruff had no reason to lie. Thus, at the time
the statement was made, "a reasonable person in the declarant's posi-
tion would not have made the statement unless believing it to be true."
12
Fed. R. Evid. 804(b)(3). Accordingly, the district court did not abuse
its discretion in admitting the statement into evidence.9
IV.
Pabellon also contends that the district court erred in refusing to
call as a court's witness a Government witness who had recanted his
earlier statement. "[T]he utilization of court witnesses is a matter
within the discretion of the trial judge." United States v. Karnes, 531
F.2d 214, 216 (4th Cir. 1976). For the reasons that follow, we con-
clude that Pabellon's argument is without merit.
During its case in chief, the Government called Scott Miller as a
witness. Miller had previously told the Government that Pabellon had
approached him about having Samuel killed. On the stand, however,
Miller denied making such a statement. The district court, out of the
presence of the jury, questioned Miller about his testimony. Miller
admitted that he had lied to the FBI about Pabellon approaching him
to have Samuel killed. The district court informed the Government
that it could not call Miller as a witness because he had recanted his
story and the Government would be calling Miller as a witness solely
to impeach him with a prior inconsistent statement.
Pabellon's counsel then asked the Court to call Miller as a court
witness. The district court refused on the ground that it did not believe
that Miller was credible. Nevertheless, the district court informed
Pabellon's counsel that Pabellon could call Miller as a witness during
his defense. Pabellon did call Miller as a witness.
_________________________________________________________________
9 We note that the defense only objected to certain portions of Wood-
ruff's statement being put before the jury, i.e. , the first two sentences and
the first half of the fifth sentence. In fact, because the defense argued at
trial that Woodruff had Samuel killed, the defense actually wanted the
district court to admit that portion of Woodruff's statement wherein he
said: "I contacted Darrell Young and asked Young. Young got back to
me in a couple of months and said he had someone on the job. . . . I gave
the money to Darrell Young." (J.A. at 411.) The district court correctly
noted, however, that taking the statement out of context, like the defense
requested, "would [make it] sound like . . . Woodruff was admitting he
started this, when in essence his statement definitely implicates someone
else as [requesting the hit and] bringing him the money." (J.A. at 411.)
13
Although Rule 614 of the Federal Rules of Evidence allows a dis-
trict court to call witnesses at the suggestion of a party, the district
court need not call an admitted liar as a witness, especially when the
witness can be (and in this case was) called by the defense. Pabellon
cites no rule, and certainly none exists, that requires a district court
to call a witness that has recanted the statement he gave to the author-
ities.
V.
Finally, Fowler contends that the district court erred in denying his
motion for judgment of acquittal pursuant to Rule 29 of the Federal
Rules of Criminal Procedure on Counts I-IV because the evidence
was insufficient to support his convictions. When assessing the suffi-
ciency of the evidence of a criminal conviction on direct review,
"[t]he verdict of a jury must be sustained if there is substantial evi-
dence, taking the view most favorable to the Government, to support
it." See Glasser v. United States, 315 U.S. 60, 80 (1942).
As an initial matter, we note that the Government introduced over-
whelming evidence that, for purposes of 18 U.S.C.A.§ 1111(a), Fow-
ler killed Samuel. Fowler was not indicted for just first-degree
murder, however. Rather, the first three counts of the indictment
alleged that Fowler killed Samuel for the reasons stated in the charged
statutes. Count One, for example, charged Fowler with the murder of
Samuel to prevent his attendance as a witness in federal district court
in violation of 18 U.S.C.A. § 1512(a)(1)(A).
On appeal, Fowler argues that the Government failed to introduce
any evidence that he killed Samuel to prevent his attendance and testi-
mony in federal district court as Count One alleged. On this point we
agree with the Government; there is no requirement under the statute
in question that the Government prove that Fowler knew the federal
nature of the proceeding in which Samuel was to participate. Indeed,
§ 1512 provides, in pertinent part, as follows:
(f) In a prosecution for an offense under this section, no
state of mind need be proved with respect to the circum-
stance --
14
(1) that the official proceeding before a judge,
court, magistrate, grand jury, or government
agency is before a judge or court of the United
States, a United States magistrate, a bankruptcy
judge, a Federal grand jury, or a Federal Govern-
ment agency; or
(2) that the judge is a judge of the United States or
that the law enforcement officer is an officer or
employee of the Federal Government or a person
authorized to act for or on behalf of the Federal
Government or serving the Federal Government as
an adviser or consultant.
18 U.S.C.A. § 1512(f); see also United States v. Bell, 113 F.3d 1345,
1349 (3d Cir.) (noting that the statute is clear that the Government
need not prove any "state of mind" on the part of the defendant with
respect to the federal character of the proceeding or officer), cert.
denied, 118 S. Ct. 447 (1997).
Thus, the Government had to prove (with respect to Count One)
that Fowler's motivation in killing Samuel was to prevent him from
testifying in a proceeding that was in fact federal in nature, not that
Fowler knew that it was federal in nature. Here, there was ample evi-
dence that Samuel was participating in a federal proceeding. Samuel
was a documented federal informant at the time of his death; Samuel
was scheduled to testify against Pabellon in federal court; and the
local agents with whom Samuel worked were assigned to a U.S.
Attorney's Office Task Force. Moreover, the record is clear that Fow-
ler knew that the reason Samuel "needed [to be] . . . taken care of"
was because he was going to finger one of Darrell Young's friends
in court. Because there is substantial evidence that the proceeding at
which Samuel was to testify was federal in nature, the verdict of the
jury as to Count One must be sustained.
Count Two charged Fowler with the murder of Samuel in retalia-
tion for his having provided to a law enforcement officer information
relating to the commission of a federal offense in violation of 18
U.S.C.A. § 1513(a)(1)(B) or aiding and abetting the same in violation
of 18 U.S.C.A. § 2. We agree with Fowler that the Government estab-
15
lished only that Fowler knew that Samuel was going to "finger" one
of Young's friends (Pabellon) in court. The Government failed to
introduce any evidence that Fowler knew that Samuel had already
provided law enforcement with information regarding Pabellon's drug
dealing. Consequently, there is insufficient evidence that Fowler
killed Samuel in retaliation for his having provided such information
in violation of § 1513(a)(1)(B).10
Count Three charged Fowler with the murder of Samuel in retalia-
tion for his having testified in a federal proceeding in violation of 18
U.S.C.A. § 1513(a)(1)(A) or aiding and abetting the same in violation
of 18 U.S.C.A. § 2. As we noted above, the Government established
only that Fowler knew that Samuel was going to "finger" one of
Young's friends (Pabellon) in court. The Government simply failed
to introduce any evidence that Fowler knew that Samuel had already
testified against Pabellon in a federal proceeding. Consequently, there
is also insufficient evidence that Fowler killed Samuel in retaliation
for his having provided such information in violation of
§ 1513(a)(1)(A).
Finally, Count Four charged Fowler with using or carrying a fire-
arm during and in relation to a drug trafficking crime in violation of
_________________________________________________________________
10 When a case is submitted to a jury on two adequate legal theories and
the jury returns a general verdict of guilty, affirmance is appropriate so
long as the evidence is sufficient to support a conviction on either theory.
See Griffin v. United States, 502 U.S. 46, 56-60 (1991); cf. Yates v.
United States, 354 U.S. 298, 312 (1957) (explaining that when a jury has
been instructed on two legal theories, one of which is legally inadequate,
the conviction must be reversed if it is not possible to determine whether
the jury convicted on the legally adequate, or inadequate, theory). Here,
Fowler was also charged with aiding and abetting. To find Fowler guilty
as an aider and abetter to the crime charged in Count Two pursuant to
18 U.S.C.A. § 2(a) (West 1969), the Government had to prove beyond
a reasonable doubt that someone committed each of the essential ele-
ments of the offense charged in Count Two. It was the Government's
theory that Fowler, not Pabellon, was guilty of the substantive offense,
and that Pabellon was guilty of aiding and abetting. Without evidence
that someone besides Fowler committed each of the essential elements
of the offense charged in Count Two, there is insufficient evidence to
find Fowler guilty of aiding and abetting pursuant to § 2(a).
16
18 U.S.C.A. § 924(c). At trial, the Government introduced evidence
that Pabellon, Woodruff, and Young continued to sell crack cocaine
after Pabellon's arrest in March 1996. Moreover, when Young
approached Fowler about killing Samuel, he specifically informed
Fowler that Samuel was going to "finger" one of his friends in the
drug conspiracy. By agreeing to kill Samuel, Fowler joined the drug
conspiracy. See United States v. Roberts, 881 F.2d 95, 101 (4th Cir.
1989) (noting that a defendant has joined a conspiracy if he under-
stands "the unlawful nature thereof and willfully joins in the plan on
one occasion"). Indeed, a defendant may join a drug conspiracy with-
out knowing "the particulars of the conspiracy or all of his cocon-
spirators." United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996)
(en banc). Because Samuel was killed by Fowler in furtherance of a
drug conspiracy, there was sufficient evidence to find Fowler guilty
on Count Four.
VI.
For the foregoing reasons, Pabellon's convictions are affirmed in
whole and Fowler's convictions are affirmed in part and reversed in
part.11 Although Fowler remains subject to two life sentences for his
_________________________________________________________________
11 Although we reverse Fowler's convictions on Counts Two and
Three, we need not sua sponte reverse Pabellon's convictions on those
same counts. The jury was correctly instructed that it could find Pabellon
guilty as a principal pursuant to 18 U.S.C.A. § 2(b) (West 1969), if he
willfully caused Fowler to perform an act that, if directly performed by
Pabellon, would be an offense against the United States. Here, the evi-
dence was overwhelming that Pabellon caused Fowler to kill Samuel.
Had Pabellon directly killed Samuel, it would be an offense pursuant to
both 18 U.S.C.A. § 1513(a)(1)(A) (West Supp. 1999) and 18 U.S.C.A.
§ 1513(a)(1)(B) (West Supp. 1999). Without question, the Government
established that Pabellon knew that Samuel had provided law enforce-
ment with information regarding his drug dealing and that Samuel had
testified against him in a federal proceeding. Consequently, had Pabellon
directly done what he caused Fowler to do, i.e. , kill Samuel, there was
sufficient evidence from which a jury could conclude that Pabellon vio-
lated § 1513(a)(1)(A) and § 1513(a)(1)(B). Thus, Pabellon could be con-
victed of Counts Two and Three under § 2 even if there was insufficient
evidence to convict Fowler of both counts under§ 1513(a)(1)(A) and
§ 1513(a)(1)(B).
17
convictions on Counts One and Four, we remand for the district court
to vacate Fowler's convictions on Counts Two and Three.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
18