United States v. Miles ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________________
No. 00-30126
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DERRICK LEMOND MILES, aka “Chuckie”;
JEFFREY JEROME LIGHTEN; ANDREW T. CREECH,
Defendants-Appellants.
_____________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
(98-CR-30010)
_____________________________________________
September 18, 2001
Before DAVIS and JONES, Circuit Judges, and BARBOUR*, District
Judge.
PER CURIAM:**
Andrew Creech challenges his convictions and sentences for
conspiracy to commit murder-for-hire in violation of 18 U.S.C. §
1958 and possession with intent to distribute and conspiracy to
distribute controlled substances in violation of 21 U.S.C. §§
841(a)(1) and 846. Derrick Miles and Jeffrey Lighten challenge the
*
District Judge of the Southern District of Mississippi,
sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
sentences the court imposed following their convictions for
possession with intent to distribute controlled substances in
violation of 21 U.S.C. § 841(a)(1). Finding no error, we affirm
the district court in all respects.
I.
The only issue that merits any extended discussion in this
case is Creech’s challenge to the sufficiency of the evidence
supporting his conviction for conspiracy to commit murder-for-hire.
18 U.S.C. § 1958 criminalizes murder-for-hire only when, “the
defendant either (1) ‘travels in or causes another (including the
intended victim) to travel in interstate or foreign commerce,’ or
(2) ‘uses or causes another (including the intended victim) to use
the mail or any facility in interstate or foreign commerce.’”
United States v. Marek, 238 F.3d 310, 312 (5th Cir. 2001) (en
banc), petition for cert. filed, 69 U.S.L.W. 3673 (U.S. Apr. 4,
2001) (No. 00-1526). Creech argues that the evidence produced by
the government was insufficient to establish either of the
jurisdictional elements of 18 U.S.C. § 1958.
A.
Creech ran a bail bond business in Monroe, Louisiana. He
wrote a bond for Samuel Nixon in the amount of $100,000, a portion
of the fee for which was paid by Stephen Latha. Nixon later
failed to appear and Creech became concerned that he would have to
make good on his bond. Though Creech had no idea how to find
Nixon, he did know how to find Latha and thought that Latha would
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lead him to Nixon.
Creech discussed his concerns about the Nixon bond with
Jeffrey Peck, who was then incarcerated at the Ouachita Parish
Jail. Peck often referred potential clients to Creech for his bail
bond business, and the two spoke frequently by telephone. Because
Peck was incarcerated, he could not receive phone calls, and thus
every discussion between Peck and Creech was the product of a phone
call initiated by Peck. Peck was also cooperating with the Federal
Bureau of Investigation. On one of the calls between the two men,
which was recorded by Peck and played at trial, Creech asked Peck
about obtaining a hit man to find Latha and then torture him to
reveal Nixon’s whereabouts.
Peck told Creech that he would put Creech in touch with a man
named Waco. Louisiana State Trooper Herbert Cross, posing as Waco,
called Creech and arranged a meeting between the two men. Trooper
Cross was posted in Alexandria, Louisiana and so never crossed a
state line in traveling to his meeting with Creech in Monroe. Nor
is there any evidence in the record that would show that Creech
thought Cross was traveling from out of state to meet with him. At
the meeting, a videotape of which was played at trial, Creech
agreed to provide Cross with a weapon and to pay him $4,000 for
finding Latha, torturing him for information about Nixon, and then
killing him. Cross ended the meeting by informing Creech that he
had to travel to Mississippi, but would return shortly to Louisiana
to conclude their deal.
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Cross in fact never traveled to Mississippi, but simply tried
calling Creech a few days later to arrange another meeting. He did
not reach Creech but did reach Robert Myers, Creech’s co-
conspirator. Cross arranged a meeting with Myers and Creech, a
tape of which was played at trial. At the meeting, the two men
told Cross that they would leave a pistol and some money in a motel
room for him. At the meeting, the two men also asked Cross why he
had no license plates on his car. Cross replied that he had
removed the plates so he could not be identified, but that he would
put plates on his car and drive home to Texas if the deal fell
through. Myers obtained a room for Cross at a motel. A loaded
pistol and $38 in cash were later recovered from the room.
B.
We will uphold a conviction if a rational jury could have
found all the elements of the crime charged beyond a reasonable
doubt. We review the sufficiency of the evidence in the light most
favorable to the verdict, accepting all of the jury’s decisions
concerning the credibility of witnesses and the weight of the
evidence. United States v. Ismoila, 100 F.3d 380, 387 (5th Cir.
1996).
Creech contends that the evidence produced by the government
was insufficient to allow a rational jury to find beyond a
reasonable doubt that, as part of his conspiracy with Robert Myers
to commit murder-for-hire, he either (1) “travel[ed] in or cause[d]
another (including the intended victim) to travel in interstate or
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foreign commerce,” or (2) “use[d] or cause[d] another (including
the intended victim) to use the mail or any facility in interstate
or foreign commerce.” 18 U.S.C. § 1958. Creech argues that no
person involved in the murder-for-hire scheme, including Trooper
Cross, ever traveled across state lines as part of the scheme.
Creech also argues that he never used any facility in interstate
commerce as part of the murder-for-hire scheme.
In Marek this court decided that even purely intrastate use of
a facility in interstate commerce was sufficient to satisfy the
second of § 1958's two jurisdictional elements. Marek, 238 F.3d at
313. In this case, the evidence produced by the government
concerning Creech’s use of the telephone - a facility in interstate
commerce - was sufficient to satisfy the second of § 1958's two
jurisdictional elements. The evidence produced by the government
showed that Creech discussed hiring a hit man and torturing Latha
in a telephone call with Peck, that Creech set up a meeting with a
man he thought was a hit man during a telephone call with Trooper
Cross, and that Creech’s co-conspirator Myers set up another
meeting with Cross during a telephone call between the two men
after Creech hired Cross to find and kill Latha. This evidence is
clearly sufficient to allow a rational jury to conclude beyond a
reasonable doubt that Creech used a facility in interstate commerce
as part of his conspiracy to commit murder-for-hire. That both
parties to each telephone call were in Louisiana is, following our
decision in Marek, of no consequence.
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Nor is it of any consequence, contrary to the argument made by
Creech, that he never initiated any of the telephone calls
discussed above. It is true that all the telephone calls discussed
above - to which Creech was a party to the conviction - were
initiated by the other party to the call. However, it is not the
case that only the party that initiates a telephone call can be
said to use the telephone. No matter who dials a telephone, both
parties to the call use the telephone. United States v. Weathers,
169 F.3d 336, 338 (6th Cir. 1999), cert. denied, 528 U.S. 838, 120
S.Ct. 101, 145 L.Ed.2d 85 (1999).1
The evidence produced by the government in this case was
clearly sufficient to allow the jury to conclude, beyond a
reasonable doubt, that Creech used a facility in interstate
commerce as part of his conspiracy to commit murder-for-hire. We
thus need not consider whether the evidence would have been
sufficient to allow the jury to conclude, beyond a reasonable
doubt, that the travel jurisdictional element of § 1958 was proved
at trial.
II.
The remaining issues raised by the three defendants do not
1
As we recognized, our holding in Marek conflicts with portions
of the reasoning in Weathers. Marek, 238 F.3d at 319. Our holding
in Marek does not conflict, however, with the implicit holding in
Weathers that one who receives a telephone call uses the telephone
for purposes of § 1958. Weathers and Marek only conflict on the
issue of the importance of the location of the parties to a
telephone call with respect to second of § 1958's two
jurisdictional elements.
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merit extended discussion. Creech’s challenge to the sufficiency
of the evidence supporting his conviction for conspiracy to
distribute and possession with intent to distribute controlled
substances amounts to nothing more than an attack on the
credibility of the witnesses against him. Credibility
determinations are left to the jury. Ismoila, 100 F.3d at 387.
The district court did not abuse its discretion in not ordering a
mistrial after Shane Creech’s testimony because Shane Creech’s
testimony was not adverse to Andrew Creech and so Andrew’s Sixth
Amendment rights were never violated. United States v. Kindig, 854
F.2d 703, 709 (5th Cir. 1988). Finally, we uphold the sentences of
all three defendants given that their sentences do not exceed the
statutory maximums in light of the drug quantities charged in the
indictments and found by the jury in its verdict. United States v.
Doggett, 230 F.3d 160, 166 (5th Cir. 2000), cert. denied, 121 S.Ct.
1152, 148 L.Ed.2d 1014 (2001).
III.
For the reasons set forth above, the judgment of the district
court is in all respects AFFIRMED.
AFFIRMED.
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