United States v. Bodkins

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4647
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LANNY BENJAMIN BODKINS,
Defendant - Appellant.
No. 06-4652
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHOINE PLUNKETT,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Danville. Glen E. Conrad, District Judge.
(4:04-cr-70083-1; 4:04-cr-70083-GEC)
Argued: December 7, 2007 Decided: April 18, 2008
Before NIEMEYER and GREGORY, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Rhonda Lee Overstreet, LUMSDEN & OVERSTREET, Roanoke,
Virginia; Clifford Lee Harrison, HARRISON & TURK, P.C., Radford,
Virginia, for Appellants. Thomas Ernest Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
William H. Cleaveland, Roanoke, Virginia; James C. Turk, Jr.,
HARRISON & TURK, P.C., Radford, Virginia, for Appellant Lanny
Benjamin Bodkins. John L. Brownlee, United States Attorney, Craig
J. Jacobsen, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Anthoine Plunkett was accused of hiring Lanny Bodkins and
Keith Taylor to murder Tyree Wimbush. Following a six-day jury
trial, Plunkett and Bodkins (collectively, Appellants) were
convicted of conspiracy to travel in interstate commerce to commit
murder for pecuniary gain and interstate travel to commit murder
for pecuniary gain (Counts I and II); conspiracy to travel in
interstate commerce to commit interstate stalking (Count III);
travel in interstate commerce to commit interstate stalking (Count
IV); and using a firearm during and in relation to a crime of
violence that resulted in death (Count V).
Prior to trial, the Attorney General authorized the death
penalty for Appellants, but withdrew the authorization before
sentencing. Appellants were each sentenced to life.
Plunkett made post-trial motions concerning the sufficiency of
the evidence and alleged Brady violations; and Bodkins filed a
motion asserting that the district court should find that he was
entitled to relief pursuant to 18 U.S.C. § 3553(e). The trial
court denied each of these motions. This appeal followed. For the
reasons stated below, we affirm the judgment of the district court.
I.
Plunkett, a black drug dealer, hired Bodkins and Keith Taylor,
two white men, to murder Tyree Wimbush, because Plunkett mistakenly
3
thought that Wimbush was a confidential informant for local drug
investigators. Each of these individuals used and sold drugs.
On July 22, 1999, Bodkins and Taylor drove from Johnson City,
Tennessee, to Danville, Virginia, to kill Wimbush. Bodkins shot
Wimbush three times, killing him with a wound to the aortic artery.
Just before he fell to the ground, Witness James Lewis Fitts heard
Wimbush say that he had been hit or shot.
The procedural history, as detailed by the district court, is
as follows:
Lanny Benjamin Bodkins, Anthoine Plunkett, and Darel
Keith Taylor were indicted by a grand jury on February
17, 2005, and charged with: conspiracy to travel in
interstate commerce with the intent to commit murder for
pecuniary gain; travel in interstate commerce with the
intent to commit murder for pecuniary gain, aiding and
abetting; conspiracy to travel in interstate commerce
with the intent to commit interstate stalking; travel in
interstate commerce with the intent to commit interstate
stalking, aiding and abetting; and use of a firearm
during and in relation to a crime of violence resulting
in death, aiding and abetting. The United States filed
Notices of Intent to Seek the Death Penalty as to Bodkins
and Plunkett on February 17, 2005.
Taylor had confessed to involvement in the murder of
Tyree Wimbush in September of 2002, during investigation
of the murder, and had entered into a plea agreement with
the government. Pursuant to that agreement, he pled
guilty to two counts of the indictment; conspiracy to
travel in interstate commerce with the intent to commit
murder for pecuniary gain (Count One), and use of a
firearm during and in relation to a crime of violence
resulting in death, aiding and abetting (Count Five).
Before the trial began, counsel for the government gave
counsel for Plunkett a tape and transcript of a statement
given by Taylor on September 19, 2002. This was the only
statement from Taylor provided to counsel for Plunkett.
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In the weeks prior to trial of the remaining
defendants, the parties engaged in limited plea
discussions. On August 12,2005, Bodkins made a proffer
to the government that yielded information that was
substantial to the government's case. Prior to the
proffer, Assistant United States Attorney Craig J.
Jacobsen told Bodkins that Bodkins would have two options
in regards to going to trial. Bodkins could either
choose to testify at trial on his own behalf or choose
not to testify at all. Jacobsen told Bodkins that he
thought if Bodkins told the jury the truth, it was his
opinion that the jury would have a much more difficult
time imposing the death penalty. At the proffer, Bodkins
gave the government attorneys information concerning a
Tennessee telephone number. The number, which Bodkins
had originally said was his girlfriend's, received a call
from Plunkett's mother's telephone card at 2:47 a.m. on
July 23, 1999, several hours after the Wimbush murder.
As a result of the information, the government renewed
attempts to obtain the records for that telephone number,
and questioned Taylor about the number. The information
provided by Bodkins was very useful to the government in
the prosecution of the case. The telephone records were
given to Plunkett's attorneys in advance of trial, but
Plunkett was not informed of the proffer given by Bodkins
prior to trial.
Bodkins was offered a plea agreement on August 14,
2005. The terms of the agreement provided that United
States Attorney John Brownlee would recommend to the
Department of Justice that Bodkins would receive a life
sentence without the possibility of parole, if Bodkins
would plead guilty and testify for the government at
trial. Bodkins rejected the plea offer.
The trial began on August 15, 2005. Pursuant to his
plea agreement, Taylor testified at trial. At the start
of trial, both Plunkett and Bodkins were unavailable to
be called as witnesses by the United States. During the
trial, Bodkins advised the court that he would be
available to be called as a witness. Plunkett was still
not informed that Bodkins had been offered a plea
agreement, however. Bodkins later took the stand on his
own behalf, and testified in conformity with the
government's theory of the case. On September 2, 2005,
Bodkins and Plunkett were convicted by a jury on all
counts of the indictment. The evidence at trial
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established that Plunkett hired Bodkins and Taylor to
murder Tyree Wimbush.
During the penalty phase of the trial, the
government moved to withdraw the death notices as to both
defendants Bodkins and Plunkett. The court granted this
motion. Bodkins and Plunkett now stand convicted of three
capital offenses which are punishable only by life
imprisonment without possibility of release and two
offenses which are punishable by a term of years up to
life imprisonment without possibility of release.
Taylor was sentenced on December 12, 2005. The
court granted the government's motion for a downward
departure for substantial assistance, sentencing Taylor
to 180 months of incarceration on Count One and 120
months of incarceration on Count Five, to run
consecutively.
After the trial, Bodkins filed a Motion for
Presentencing Relief, alleging that the United States
breached an implied pretrial agreement with Bodkins to
give him the same bargain as Taylor if he made a proffer
of substantial information. Bodkins sought enforcement
of the alleged agreement. The motion was denied by this
court on April 27, 2006.
Defendant Plunkett filed a motion for new trial
based on undisclosed Brady material ("First Brady
Motion") on November 11,2005, alleging that certain
statements made by defendant Taylor were not disclosed to
the defendant prior to trial. Plunkett filed another
motion based on undisclosed Brady material on January
6,2006 ("Third Brady Motion"), seeking a new trial
because he had not been informed of Bodkins' negotiations
with the government prior to his testimony. A hearing on
the motions was held on April 28, 2006.
(J.A. 1939-42) (footnote omitted).
II.
Plunkett argues that the district court erred in finding that
the evidence presented at trial supported his convictions. To
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determine if there was sufficient evidence to support a conviction,
we consider whether, taking the evidence in the light most
favorable to the government, substantial evidence supports the
jury’s verdict. Glasser v. United States, 315 U.S. 60, 80 (1942)
(“The verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the government, to
support it.”).
Substantial evidence is defined as “that evidence which ‘a
reasonable finder of fact could accept as adequate and sufficient
to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.’” United States v. Newsome, 322 F.3d 328, 333 (4th Cir.
2003) (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)). We review both the direct and circumstantial evidence and
accord “the government the benefit of all reasonable inferences
from the facts proven to those sought to be established.” United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citation
omitted).
When reviewing claims of sufficiency of the evidence, “[t]he
relevant question is not whether the appellate court is convinced
of guilt beyond a reasonable doubt, but rather whether, viewing the
evidence in the light most favorable to the government, any
rational trier of facts could have found the defendant guilty
beyond a reasonable doubt.” Tresvant, 677 F.2d at 1021 (citations
omitted).
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Concerning Counts One and Two, 18 U.S.C. § 1958(a) provides,
in relevant part, that
[w]hoever travels in or causes another . . . to travel in
interstate . . . commerce . . . with intent that a murder
be committed in violation of the laws of any State or the
United States as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything
of pecuniary value, or who conspires to do so, shall be
fined . . . or imprisoned . . . or both.
18 U.S.C. § 1958(a).
Plunkett maintains that certain of the government’s evidence
is inconsistent with other evidence that the government presented,
(Appellants’ Brief 27-29), but that “Defense witnesses offered
testimony free of bias and inconsistency.” (Appellant Brief 29.)
We first note that it is not the duty of this Court to weigh
the evidence and to resolve inconsistences. That, instead, is the
province of the trier of fact. In fact, from our review of the
record, it appears that is exactly what the jury was called upon to
do.
Moreover, and as observed by the government, the
inconsistencies cited by Plunkett are insignificant. (Appellee’s
Brief 12.) As such, we see no need to detail each one here.
Simply stated, “Taylor’s testimony that Plunkett hired him and
Bodkins to kill Wimbush, Bodkins and Plunkett’s pretrial
admissions, Plunkett and Taylor’s incriminating phone records, and
the eyewitnesses to Wimbush’s murder amply established Plunkett’s
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guilt on [Counts One and Two].” (Appellee’s Brief 11-12.)
Accordingly, we will affirm the district court on this issue.
Counts Three, Four, and Five pertain to the interstate
stalking crimes for which Plunkett was charged. To establish the
crime of interstate stalking, the government must prove beyond a
reasonable doubt that (1) the defendant traveled in interstate
commerce; (2) such interstate travel was with intent to injure or
harass the victim; and (3) during or after such travel, the
defendant committed an act of placing the victim in reasonable fear
of death or serious bodily injury. 18 U.S.C.A. § 2261A; United
States v. Wills, 346 F.3d 476, 493-94 (4th Cir. 2003).
Plunkett contends that the third element of the offense is not
met. According to Plunkett,
[t]here is no evidence of a pattern of intimidation or
threats from Plunkett to Wimbush. Evidence established
that Wimbush and Plunkett were friendly acquaintances for
a significant period. The evidence establishes that
Wimbush voluntarily approached the vehicle on the night
of July 22 to conduct a drug deal. If Wimbush had in
fact been in fear for his life, he would not have
approached the vehicle in such a manner.
(Appellants’ Brief 32.) We find these arguments to be unavailing.
The fear element of § 2261A requires only that, for some
period of time, the victim was placed in reasonable fear of death
or serious bodily injury. Wills, 346 F.3d at 494. Whether there
was a pattern of intimidation or a friendly relationship between
the defendant and the victim is of no moment. The fact that
Wimbush freely approached the vehicle is equally inconsequential.
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At trial, Witness Fitts testified as follows:
Q. When you heard the shots, did you hear [Wimbush] say
anything?
A. Yes, sir.
Q. What did he say?
A. “I been” -- “I been hit” or “I been shot” or
something like that.
Q. And then after he was shot, what did he do?
A. He just, like, grabbed to where he was shot at and,
like, stood there for a second and then fell over
to the curb.
(J.A. 94.) We are of the opinion that Wimbush’s statement that he
had been shot establishes that he was placed in reasonable fear of
death or serious bodily injury, See Wills, 346 F.3d at 494, albeit
for a very short period of time. Therefore, we will affirm the
district court on this issue as well.
III.
Plunkett next contends that the district court erred in
refusing to grant a new trial on the basis that the government
violated Plunkett’s due process rights by neglecting to divulge one
of its witness’ prior inconsistent statements until midway through
the trial. We review the court’s refusal to grant a new trial for
an abuse of discretion. United States v. Huggins, 191 F.3d 532,
536 (4th Cir. 1999).
A Brady violation occurs when the government fails to disclose
prior to trial “evidence favorable to an accused . . . where the
evidence is material to guilt or punishment, irrespective of the
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good faith or bad faith of the prosecution.” Brady v. Maryland,
373 U.S. 83, 87 (1963). This Court has found that the evidence is
favorable if (1) it would exculpate the accused or (2) it could be
employed to impeach a government witness. United States v. Ellis,
121 F.3d 908, 914 (4th Cir. 1997); United States v. Bagley, 473
U.S. 667, 682 (1985). Nevertheless, no due process violation
occurs as long as Brady material is disclosed to a defendant in
time for its effective use at trial. United States v. Smith
Grading and Paving, Inc. 760 F.2d 527, 532 (4th Cir. 1985) (citing
United States v. Higgs,,713 F.2d 39 (3rd Cir. 1983).
Materiality is the final limitation that circumscribes
the prosecutor's duty under Brady to disclose information
favorable to the defense. The touchstone of materiality
is a concern that the suppressed evidence might have
affected the outcome of the trial. Accordingly, an
individual alleging a Brady violation must demonstrate
that there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.
Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 559 (4th Cir. 1999)
(internal quotation marks and citations omitted).
In the instant case, Plunkett maintains that Taylor’s
September 19, 2002, confession was an inconsistent statement that
the government should have made available to him prior to trial.
At trial, Taylor acknowledged that he was not completely candid
with investigators initially in that he attempted to minimize his
role in Wimbush’s murder.
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At first blush, it may appear that Plunkett has established a
Brady violation. There can be no credible argument against the
assertion that Taylor’s prior statements were favorable to Plunkett
and that they were not disclosed to him until just before the trial
commenced. Moreover, because Taylor’s initial statement was
inconsistent with his testimony at trial, Plunkett could use the
inconsistencies to impeach Taylor’s credibility. It is our
materiality analysis, however, that exposes the fatal flaw in
Plunkett’s Brady claim.
After our exhaustive review of the record, we are convinced
that Taylor’s September 19, 2002, statements were not material.
Stated differently, we are unable to find “that there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.”
Id.Pursuant to our examination, we observe that Taylor’s
inconsistent statements were made known at trial. Accordingly,
counsel for Plunkett was afforded the opportunity to cross-examine
Taylor about his prior inconsistent statements. We are thus unable
to fathom how the outcome of the trial might have been different
had Plunkett possessed the prior inconsistent statements earlier.
As noted by the government, any suggestion by Plunkett “that he
would have conducted a better cross-examination had Taylor’s
pretrial statement been disclosed before trial does not establish
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prejudice.” (Appellee’s Brief 17.) Accordingly, we will affirm
the trial court on this issue.
IV.
Plunkett also maintains that the district court erred in not
granting a new trial on the basis that the government allegedly
knew that it was educing false testimony in its cross-examination
of Bodkins. More specifically, Plunkett alleges that the
government misled the jury in that Bodkins’ testimony inaccurately
led the jury to believe that Bodkins was testifying solely for the
purposes of doing the right thing and bringing comfort to the
Wimbush family. As already noted, the district court’s refusal to
grant a motion for a new trial is reviewed for an abuse of
discretion. Huggins, 191 F.3d at 536.
As stated above, for purposes of determining whether there is
a Brady violation, we have found that the evidence is favorable if
(1) it would exculpate the accused or (2) it could be employed to
impeach a government witness. Ellis, 121 F.3d at 914; Bagley, 473
U.S. at 682. Moreover, it is well settled that an agreement or
understanding between a government witness regarding future
prosecution should be made known to the jury because such agreement
or understanding goes to the credibility of that witness. Giglio
v. United States, 405 U.S. 150, 154-55 (1972).
13
It is indisputable that the agreement between the government
and Bodkins was “favorable” to Plunkett whereas it could be used to
impeach Bodkins and bring into question his credibility.
Nevertheless, Bodkins was not a government witness. Instead, he
testified on his own behalf. Accordingly, Giglio does not require
that the government disclose its plea negotiations with him.
Plunkett, however, argues that it is inconsequential whether
Bodkins was a government witness or a witness testifying on his own
behalf. Nevertheless, he has not set forth and we have not found
any controlling authority to sustain his contention. We must
therefore reject this argument.
Moreover, contrary to Plunkett’s suggestion to the contrary,
we are unable to find that “there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Spicer, 194 F.3d at 559.
Stated differently we do not think that the evidence concerning
Bodkins’ negotiations with the government was material. Therefore,
because a Brady violation occurs only when the government fails to
disclose favorable material evidence, Brady, 373 U.S. at 87, we can
find no Brady violation here.
Plunkett also contends that the government’s failure to
disclose its plea negotiations with Bodkins is violative of the
principles set forth in Napue v. Illinois, 360 U.S. 264 (1959). To
establish a constitutional violation under Napue, Plunkett must
14
prove that (1) Bodkins testified falsely, (2) the government was
aware that Bodkins’ testimony was false, and (3) Bodkins’ testimony
was material. See United States v. Mason, 293 F.3d 826, 828 (5th
Cir. 2002).
From our examination of Bodkins’ testimony, we are unable to
find that he testified falsely. Although the government offered
Bodkins a plea agreement for a term of life, he rejected the
agreement. He hoped to obtain an offer for a term of years.
Further, the jury was informed of the government and Bodkins’
negotiations as well as Bodkins’ desire that the government would
file a motion for substantial assistance on his behalf. Hence, the
jury was afforded this information on which they could judge
Bodkins’ credibility.
Finally, and as we have already observed, this evidence was
not material for the reason that there is no reasonable likelihood
that the jury verdict would have been different had it been made
known to Plunkett earlier. Therefore, we find no reversible error
here.
V.
Bodkins claims that the district court erred in not holding
that the government’s failure to file a motion pursuant to 18
U.S.C. § 3553(e) violated the terms of its proffer letter to
Bodkins. Bodkins also asserts that the district court was in error
15
in not finding that the government’s failure to make the § 3553(e)
motion was based on Bodkins’ race.
“We review a district court’s findings regarding what the
parties said or did for clear error, while principles of contract
interpretation applied to the facts are reviewed de novo.” United
States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000) (citations and
internal quotation marks omitted). As to whether the government
intentionally discriminated against a defendant on the basis of
race, we review this issue for clear error. United States v. Lane,
866 F.2d 103, 106 (4th Cir. 1989).
Section 3553(e) of Title 18 of the United States Code
provides, in relevant part, that “[u]pon motion of the Government,
the court shall have the authority to impose a sentence below a
level established by statute as a minimum sentence so as to reflect
a defendant's substantial assistance in the investigation or
prosecution of another person who has committed an offense.” 18
U.S.C.A. § 3553(e).
The government is allowed to refuse to make a substantial
assistance motion except (1) for an unconstitutional motive such a
race or religion or (2) where refusal is not rationally related to
a legitimate government objective. Wade v. United States, 504 U.S.
181, 185 (1992).
The district court found that the government’s reference to
the races of the defendants amounted to “purely tactical
16
considerations for trial.” (J.A. 1775.) The court also noted that
Bodkins and Plunkett had “differing situations” and that the
government ultimately offered Bodkins a plea agreement for a life
term that he rejected. (J.A. 1775.) According to the trial court,
there was no “meeting of the minds.” (J.A. 1776.)
Bodkins claims that the trial court erred in deciding that the
government’s refusal to file or to consider filing a § 3553(e)
motion was not violative of the terms of his proffer letter. This
assertion is simply incorrect.
The letter provided that the government, “acting in [its] sole
discretion will determine whether to enter into a plea agreement
with you,” and that the “proffer in no way binds the United States
Attorney, nor does it constitute substantial assistance under the
provisions of Sentencing Guideline 5K1.1 and Title 18, United
States Code, Section 3553(e).” (J.A. 1292.) Therefore,
considering that this letter grants sole discretion to the
government to make a substantial assistance determination, we
cannot find that the government violated the terms of the proffer
letter by not filing a § 3553(e) motion. Bodkins’ claims of fraud
and bad faith are also unpersuasive.
Bodkins’ argument that the trial court erred in not finding
that the government racially discriminated against him in filing a
§ 3553 motion is equally unavailing. To prevail on this claim,
Bodkins must show that similarly situated individuals of a
17
different race were treated differently. United States v.
Armstrong, 517 U.S. 456, 465 (1996). This he cannot do.
Bodkins and Plunkett were not similarly situated. Bodkins was
the one who (1) had actually shot and killed Wimbush, (2) had been
convicted for robbery shortly after he killed Wimbush, (3) had
shown no remorse for killing Wimbush, and (4) had attempted to get
people to provide for him a false alibi in the case. (J.A. 1392-
93.) Moreover, his criminal history was much more extensive than
that of Plunkett. Thus, it was not error for the district court to
determine that the government’s decision to offer Plunkett a more
favorable plea agreement than Bodkins was based on strategic
reasons alone, and not race. Therefore, we will affirm the
district court on this issue.
VI.
We have considered the remaining contentions set forth by
Appellants, including those contained in Plunkett’s supplemental
brief, but find them to be without merit.
VII.
Therefore, in light of the foregoing discussion and rationale,
the judgment of the district court is hereby
AFFIRMED.
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