United States v. Applewhaite , 195 F.3d 679 ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
11-2-1999
United States v Applewhaite
Precedential or Non-Precedential:
Docket 98-7541, 98-7624
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"United States v Applewhaite" (1999). 1999 Decisions. Paper 297.
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Filed November 2, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-7541/7624
UNITED STATES OF AMERICA; GOVERNMENT OF THE
VIRGIN ISLANDS
v.
VICTOR McDENE APPLEWHAITE,
Appellant No. 98-7541
UNITED STATES OF AMERICA; GOVERNMENT OF THE
VIRGIN ISLANDS
v.
LYDIA GROUBY ROMERO;
VICTOR McDENE APPLEWHAITE;
Lydia Grouby Romero,
Appellant No. 98-7624
Appeal from the Judgment of the District Court
of the Virgin Islands, Division of St. Croix
(D.C.V.I. Criminal No. 1997-0019, STX)
District Judge: Hon. Raymond L. Finch
Argued: April 15, 1999
Before: NYGAARD, McKEE and RENDELL, Circuit Judges
(Opinion filed: November 2, 1999)
JOSEPH J. MINGOLLA, ESQ.
(Argued)
21A Bjerge Gade
P.O. Box 9820
St. Thomas, United States Virgin
Islands 00801
Attorney for Appellant, Lydia Grouby
Romero
JACQUELINE WARNER MILLS, ESQ.
#250 Peter's Rest
Christiansted, St. Croix, United
States Virgin Islands 00820
Attorney for Appellant, Victor McDene
Applewhaite
JAMES A. HURD, JR. ESQ.
United States Attorney
JAMES R. FITZNER, ESQ. (Argued)
Assistant United States Attorney
1108 King Street -- Suite 201
Christiansted, St. Croix, United
States Virgin Islands 00820
Attorneys for Appellee
OPINION OF THE COURT
McKEE, Circuit Judge.
In this consolidated appeal, Victor McDene Applewhaite
and Lydia Grouby Romero allege that their conviction for
numerous federal and territorial crimes must be reversed
because the evidence presented at their joint trial was
insufficient to sustain the jury's verdict.1
_________________________________________________________________
1. Appellants also challenge their convictions on constitutional grounds,
but those arguments require little discussion. Romero relies upon United
States v. Lopez, 514 U.S. 549 (1995), to argue that Congress exceeded
its authority under the Commerce Clause in enacting 18 U.S. C. S 2119.
However, two months after the Court decided Lopez, we rejected an
identical challenge to the carjacking statute. In United States v. Bishop,
66 F.3d 569, 590 (3d Cir. 1995) we held, inter alia, that because motor
2
The defendants were convicted of conspiracy in violation
18 U.S. C. S 371 (Count 1); carjacking in violation 18 U.S.
C. S 2119(2) (Count 2); hindering the communication of
information relating to the commission of a federal offense
violation of 18 U.S. C. S 1512(b)(3) (Count 3); and
destruction of evidence in violation of 18 U.S. C.
S 1512(b)(2)(B) (Count 4). They were also convicted of the
territorial crimes of attempted first degree murder in
violation of 14 Va. I. C. SS 922(a)(1), 331 and 11 (Count 5)
and kidnapping in violation of 14 Va. I. C. #8E8E # 1051 and 11
(Count 6). We agree that the evidence presented at trial was
insufficient to support the defendants' convictions for
carjacking under 18 U.S. C. S 2119(2) (Count 2), and we
will therefore reverse as to that count of the indictment.
However, we will affirm as to the remaining counts.
_________________________________________________________________
vehicles are "instrumentalities of interstate commerce," it was within
Congress' authority under the Commerce Clause to "criminalize activities
affecting their use even though the wrongful conduct, such as
carjacking, occurs wholly intrastate." Moreover, we note that seven other
circuit courts of appeals have held that Lopez does not undermine the
constitutional validity of the 18 U.S. C. S 2119. See United States v.
Rivera-Figueroa, 149 F.3d 1 (1st Cir. 1998); United States v. Romero, 122
F.3d 1334 (10th Cir. 1997), cert. denied, ___ U. S. ___, 118 S. Ct. 1310
(1998); United States v. Hicks, 103 F.3d 837 (9th Cir. 1996); United
States v. McHenry, 97 F.3d 125 (6th Cir. 1996); United States v.
Coleman, 78 F.3d 154 (5th Cir. 1996); United States v. Hutchinson, 75
F.3d 626 (11th Cir. 1996); and United States v. Robinson, 62 F.3d 234
(8th Cir. 1995).
Applewhaite also argues that the witness tampering statute, 18 U.S.
C. S 1512, is unconstitutionally "overbroad," as applied to him, because
the government "has suggested" that the statute is not limited to the
federal charges but to the territorial charges as well. Applewhaite's Br.
at
8-9. His argument is without merit. The witness tampering statute's
reach is limited to tampering that "affects a federal proceeding or
investigation," United States v. Bell, 113 F.3d 1345, 1348 (3d Cir. 1997),
and Applewhaite has not pointed to anything in the record that would
indicate that the government suggested otherwise. Moreover, here, the
District Court clearly instructed the jury that the witness tampering
charges applied only to the federal charge of carjacking. Jt. App. at
500a-502a. As discussed infra, the prosecution's failure to prove the
federal offense of carjacking does not negate the fact that the
prosecution for that offense was a "federal proceeding" under S 1512.
3
I. FACTUAL BACKGROUND.
Were this case not so tragic, it could quite properly be
classified as "A Comedy of Errors." Lydia and Eddie Romero
had been married for approximately 17 years. The events
that underlie this appeal clearly show that theirs was not
the happiest of relationships. As of April, 1997 they had
been separated for about two years and the period of their
separation had been marked by rancorous arguments and
violence as well as allegations that Lydia had threatened to
kill, and had assaulted Eddie. Lydia, who was a Virgin
Islands Police Officer, had become romantically involved
with Victor Applewhaite, who was also a Virgin Islands
Police Officer.
In the morning of April 19, 1997, Lydia Romero and
Eddie Romero had a heated argument about the latter's
delinquency in his child support and mortgage payments.
That evening, Lydia Romero telephoned Eddie Romero and
told him to come immediately to her home because she
needed to speak to him about their daughter. Eddie Romero
asked if the matter could wait until the following day, but
Lydia insisted that it was important that they speak then.
Consequently, Eddie drove his white van to Lydia's home.
When he arrived, Lydia was waiting outside in the front
yard. Eddie got out of his van and rested against it near a
small gate in a stone wall. The wall separated Eddie from
Lydia. Lydia told Eddie to wait outside the stone wall until
she penned the dogs; however, she made no move to pen
the dogs. Rather, she remained in place, staring at Eddie
Romero. As she stood staring at Eddie, he was knocked
unconscious by three blows from behind.
Jean and Marie Hepburn lived across the street from
Lydia Romero. During the night of April 19th going into the
morning of April 20th, Jean Hepburn was awakened by
barking dogs. He also heard something that sounded like
someone being beaten with a stick or a bat, and, two or
three minutes later, he heard the sound of Lydia Romero's
Ford Explorer leaving the area, only to return about thirty
minutes later. Marie, Jean's wife, was also awakened by the
barking dogs and also heard something that sounded like
someone being hit with a stick. A little later she heard a car
4
leave, and, within two minutes she heard Lydia Romero's
Explorer leave. About one half-hour later she also heard
Romero's Explorer return.
Sometime after being knocked unconscious, Eddie
Romero awoke inside his van to see Applewhaite driving the
van. Applewhaite had his left hand on the steering wheel,
and he was holding a gun in his right hand. As Eddie
regained consciousness, he and Applewhaite began to
struggle as he attempted to grab Applewhaite's gun. As they
wrestled for the gun, Eddie Romero was shot. Applewhaite,
who was unable to drive, control the gun, and wrestle with
Romero at the same time, lost control of the van which
crashed into surrounding vegetation. After the crash,
Applewhaite got out of the van, turned and fired two more
bullets into Eddie Romero, and then ran from the scene.
Police later discovered a bloody baseball bat and latex
gloves in the well below the driver's seat of the van, and
Applewhaite's fingerprints were recovered from the van's
hood.
Fortunately for Romero, Applewhaite was no better at
aiming a gun than he was at kidnapping or driving a
"getaway" car. Accordingly, none of the bullets that
Applewhaite fired into Romero were fatal. Romero was
treated for 3 bullet wounds, shock, blunt force trauma that
was consistent with having been struck with a baseball bat,
and released from the hospital.
At approximately 4:00 a.m. the day after Romero was
assaulted, Lydia Romero contacted another Virgin Islands
police officer, Akeem Newton, and told him that she had
heard on the radio that Eddie Romero had been beaten-up.
Newton went immediately to Lydia Romero's house. There,
he noticed that the stone wall in front of the house had
recently been painted. Later that morning, Newton had
seen Lydia Romero painting the wall and plantingflowers in
the earth abutting it. At Lydia Romero's urging, Newton had
helped her plant flowers.
The Hepburns also saw Lydia Romero painting the stone
wall. Jean Hepburn saw Lydia Romero standing by her
front gate with a bucket, cleaning the stone wall in front of
her house with a rag or a chamois after he got out of bed
5
on the morning of April 20th. Shortly thereafter, he saw "a
young Spanish guy by the street with a pick digging,
planting flowers and [Lydia] Romero was there with -- they
was painting the wall." Joint Appendix at 41a. About 7:00
a. m. on the morning of April 20th, Marie Hepburn also saw
a "young Puerto Rican guy" painting the wall and saw Lydia
Romero planting flowers in front of the wall. Id. at 62-63.
The stone fence had never previously been painted during
the 18 years the Hepburns lived across the street from
Lydia Romero. Forensic analysis later revealed Eddie
Romero's blood on the stone wall and in the soil beneath it.2
On the morning of April 20th, Lydia Romero told Newton
that she was concerned that Eddie Romero might try to
implicate her in the attack; and that if anyone asked, he
(Newton) should say that he spent the preceding night with
her. Later that day, Applewhaite contacted Newton, and
informed him that Lydia Romero had been arrested.
Applewhaite also reminded Newton of Lydia's request that
Newton tell anyone who inquired that Lydia and Newton
had spent the night together.
Lydia Romero and Applewhaite were subsequently
indicted for the aforementioned violations of federal and
territorial law and jointly tried before a jury. Lydia Romero
did not testify at trial. However, Applewhaite did testify. He
admitted hitting Eddie Romero with the baseball bat, but
he testified that he did so because Eddie was threatening
Lydia with a gun. Applewhaite explained that when he
realized what he had done, he put on the latex gloves that
he retrieved from Lydia's car, and he then put Eddie
Romero in Eddie's own van in order to take him to the
hospital. According to Applewhaite's testimony, Eddie woke-
up as he was being taken to the hospital, a struggle
ensued, and a gun that Applewhaite just happened to be
holding went off. The jury rejected Applewhaite's version of
what happened and convicted both defendants of all
charges. This appeal followed.3 We will limit our discussion
_________________________________________________________________
2. Counsel stipulated that the blood that was recovered from the wall
and the soil was that of Eddie Romero.
3. The district court had jurisdiction pursuant to 4 Va. I. C. S 32 and 48
U.S. C. S 1612(a) and (c). We have jurisdiction pursuant to 28 U.S. C.
S 1291.
6
to the defendants' attack upon the sufficiency of the
evidence.
II. STANDARD OF REVIEW.
In reviewing the sufficiency of the evidence to sustain a
conviction we review the evidence in the light most
favorable to the government as verdict winner. United
States v. Stansfield, 101 F.3d 909, 911 (3d Cir. 1996). "We
must affirm the convictions if a rational trier of fact could
have found defendant guilty beyond a reasonable doubt,
and the verdict is supported by substantial evidence."
United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).
III. FEDERAL CONVICTIONS.
A. Conspiracy.
We begin our discussion with the defendants' assertion
that there was insufficient evidence to support their
conspiracy convictions. Count 1 of the superseding
indictment charged that Romero and Applewhaite agreed
with each other to commit three related federal crimes, viz.,
(1) carjacking; (2) hindering the communication of
information relating to the commission of a federal offense;
and (3) destruction of evidence to be used in an official
proceeding. Section 371 of Title 18 provides, in relevant
part, that "[i]f two or more persons conspire to commit any
offense against the United States, . . . and one or more of
such persons do any act to effect the object of the
conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both."
"In a conspiracy indictment, the gist of the offense is the
agreement and specific intent to commit an unlawful act,
and when required by statute, an overt act." United States
v. Wander, 601 F.2d 1251, 1259 (3d Cir. 1979). Here, the
defendants challenge only the first element of their
conspiracy convictions. They argue that the government did
not prove an illicit agreement beyond a reasonable doubt.
Thus, we must determine if the evidence at trial would have
allowed a reasonable juror to conclude beyond a reasonable
7
doubt that the defendants "shared a unity of purpose, [or]
the intent to achieve a common goal and an agreement to
work together toward the goal." United States v. Wexler, 838
F.2d 88, 90-91 (3d Cir. 1988) (citation and internal
quotations omitted).
The defendants correctly note that there is no direct
evidence of any agreement between them to commit any
acts furthering any of the three objects of the conspiracy.
However, direct evidence is not required. Although each
element of a criminal conspiracy must be proven beyond a
reasonable doubt, each may be proven entirely by
circumstantial evidence, United States v. McGlory, 968 F.2d
309, 321 (3d Cir. 1992). The law merely requires that "the
inferences drawn must have a logical and convincing
connection to the facts established." United States v.
Casper, 956 F.2d 416, 422 (3d Cir. 1992). Accordingly, we
must examine the evidence that was presented as to each
of the substantive crimes that the government alleged as
objects of the conspiracy and determine if the quantum of
evidence supports each of their convictions.
1. Carjacking.
In order to be convicted of carjacking under 18 U.S. C.
S 2119,4 the government"must prove that the defendant (1)
_________________________________________________________________
4. The text of the carjacking statute provides:
Whoever, with the intent to cause death or serious bodily harm
takes a motor vehicle that has been transported, shipped, or
received in interstate or foreign commerce from the person or
presence of another by force and violence or by intimidation, or
attempts to do so, shall--
(1) be fined under this title or imprisoned not more than 15 years,
or both,
(2) if serious bodily injury (as defined in section 1365 of this
title,
including any conduct that, if the conduct occurred in the special
maritime and territorial jurisdiction of the United States, would
violate section 2241 or 2242 of this title) results, be fined under
this
title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for
any
number of years up to life, or both, or sentenced to death.
18 U.S. C. S 2119.
8
with intent to cause death or serious bodily harm (2) took
a motor vehicle (3) that had been transported, shipped or
received in interstate or foreign commerce (4) from the
person or presence of another (5) by force and violence or
intimidation." United States v. Lake, 150 F.2d 269, 272 (3d
Cir. 1998)(internal quotations omitted).
In Holloway v. United States, ___ U. S. ___, 119 S. Ct.
966 (1999) the Supreme Court clarified the mens rea
required for carjacking.
[t]he intent requirement of S 2119 is satisfied when the
Government proves that at the moment the defendant
demanded or took control over the driver's automobile,
the defendant possessed the intent to seriously harm
or kill the driver if necessary to steal the car (or,
alternatively, if unnecessary to steal the car).
119 S. Ct. at 972 (emphasis added). Thus, the statute
directs the factfinder's attention to the defendant's
state of mind at the precise moment he demanded or
took control over the car "by force and violence or by
intimidation." If the defendant has the proscribed state
of mind at that moment, the statute's scienter element
is satisfied.
Id. at 970. Here, it is clear that the required scienter was
never established. Although the defendants clearly intended
to seriously harm or kill Eddie Romero, neither their evil
intent, nor the force they employed in furtherance of it, had
any nexus to the subsequent taking of his van. The force
was employed in an attempt to harm Eddie Romero. It was
not used to take his van.
It is, of course, uncontested that Romero's van was taken
after he was violently assaulted. But that does not establish
that the force was used to get control of his van. Even when
this record is viewed in the light most favorable to the
government, it is clear that the prosecution failed to
establish the required nexus between the assault and the
taking. Rather, the record establishes that the van was
taken as an afterthought in an attempt to get Romero's
limp body away from the crime scene. That is not sufficient
to establish the intent required under S 2119.
9
The carjacking statute reflects Congress' "intent to
authorize federal prosecutions as a significant deterrent to
a type of criminal activity that was a matter of national
concern." Holloway v. United States, ___ U. S. at ___, 119 S.
Ct. at 970. Congress was concerned about persons who
used force or intimidation to steal motor vehicles.
The government attempts to argue that the defendants
took Romero's car in order to transport his body away from
the crime scene without contaminating their own cars with
evidence, and that this satisfies the elements ofS 2119. The
government asserts:
Without question, the trial evidence . . . would lead a
reasonable juror to properly conclude that by no later
than . . . when Eddie Romero arrived in front of
appellant Romero's residence, both appellants were
acting in concert to implement a plan whereby Eddie
would be assaulted, thereby giving the appellants
control over his van and the means to transport his
body from the crime scene. Further, a reasonable jury
could well find that, based upon the appellants'
background as police officers, they knew that Eddie
could not be transported away in their vehicles for fear
of contaminating it with blood and other evidence. .. .
Accordingly, appellants' assertions that the government
failed in its burden of proof should be summarily
dismissed. U.S. v. Holloway, ___ U.S. ___, 119 S. Ct.
966, 972 (1999) ("The intent requirement of S 2119 is
satisfied when the Government proves that at the
moment the defendant . . . took control over the
driver's automobile the defendant possessed the intent
to seriously harm or kill the driver if necessary to steal
the car, alternatively, if unnecessary to steal the car.")
Appellee's Br. at 27. However, the government's reliance
upon Holloway disproves the government's position. It
simply makes no sense to suggest that Eddie Romero was
assaulted so that the defendants could transport his body
away from Lydia Romero's home. The reason the
defendants assaulted Romero was not to transport his body
in his own car. Rather, the force was used solely for the
purpose of bludgeoning Romero. That was the object of the
assault. It was not the means of stealing his car. After
10
defendants accomplished their objective, they dragged
Romero's unconscious body to his car, and drove away.
However, under Holloway, unless the threatened or actual
force is employed in furtherance of the taking of the car,
there is no carjacking within the meaning of 18 U.S.C.
S 2119. Accordingly, the defendants' conviction for
carjacking can not stand.
2. Hindering Communication of Information.
Defendants were convicted of hindering the
communication of information relating to the commission of
a federal offense in violation of 18 U.S. C. S 1512(b)(3).
Section 1512(b)(B)(3) provides in pertinent part:
Whoever . . . corruptly persuades another person, or
attempts to do so, or engages in misleading conduct
toward another person, with intent to . . . hinder,
delay, or prevent the communication to a law
enforcement officer or judge of the United States of
information relating to the commission or possible
commission of a Federal offense . . .
shall be punished according to the provisions of the
statute. As noted above, Romero and Applewhaite tried to
persuade Newton to provide a false alibi for Romero. Both
defendants now argue that the evidence was not sufficient
to allow the jury to infer that Newton would provide a false
alibi to a federal law enforcement officer. However, their
argument misconstrues the force and breadth of the
statute.
Here, as noted above, Newton testified that Lydia Romero
asked him to tell anyone who asked that he spent the night
with her. Newton further testified that Applewhaite
telephoned him after Romero's arrest and told him to
remember what Romero had requested him to say. Thus,
Newton's testimony is sufficient evidence to allow the jury
to infer that Applewhaite and Romero agreed to persuade
Newton to provide false information to law enforcement
officials. In fact, if Newton's testimony is believed, no other
inference is possible; and it is obvious from the jury's
verdict that the jurors did believe Newton.
11
We have previously stated that under S 1512
the government must prove that at least one of the law-
enforcement-officer communications which the
defendant sought to prevent would have been with a
federal officer, but the government is not obligated to
prove that the defendant knew or intended anything
with respect to this federal involvement. . . .[T]he
government may carry this burden by showing that the
conduct which the defendant believed would be
discussed in these communications constitutes a
federal offense, so long as the government also
presents additional appropriate evidence.
United States v. Bell, 113 F.3d 1345, 1349 (3d Cir.
1997)(internal quotations omitted) (citing United States v.
Stansfield, 101 F.3d 909, 918 (3d Cir. 1996). In Bell, the
defendant was convicted in federal court for murdering
Doreen Proctor. Ms. Proctor had been acting as an
informant for the Tri-County Drug Task Force, and had
been scheduled to testify against Bell's boyfriend in state
court the day of her murder. The Task Force Proctor had
been cooperating with was developing evidence for use in
federal as well as state court. Bell was initially acquitted of
murdering Proctor in state court, but she was thereafter
tried and convicted in federal court for witness tampering in
violation of 18 U.S.C. S 1512(a)(1)(A) based upon her
involvement with Doreen Proctor's murder.
One of her arguments on appeal from her federal
conviction was that the evidence was insufficient to
establish that she intended to interfere with a federal
proceeding. She asserted that the evidence against her
showed that Proctor had only been involved in a state
investigation and prosecution. Thus, according to Bell,
"there was no federal proceeding contemplated at the time
of Proctor's murder." Id. at 1348, and she therefore did not
interfere with a federal witness within the meaning of
S 1512. Bell insisted that, although federal officers had
been involved in the Task Force investigation, "there was no
evidence that Proctor had been providing information to a
federal officer or to an officer authorized to act on behalf of
the federal government." Id. Accordingly, we had to
determine if the circumstantial evidence was sufficient to
12
allow the jury to conclude that "at least one of the law-
enforcement-officer communications that Bell intended to
prevent would have been with a federal officer." Id. We held
that it was.
In doing so, we relied upon "the statute's clear command
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." Id. at 1349. We
concluded that the statute only requires proof that the
"officers with whom the defendant believed the victim might
communicate would in fact be federal officers." Id.
Similarly, here, the evidence showed that the defendants
attempted to influence the testimony available to law
enforcement officers. The government did not have to
establish that the defendants specifically intended to
interfere with a federal investigation. All that S 1512(b)(B)(3)
requires is that the government establish that the
defendants had the intent to influence an investigation that
happened to be federal.
Although we conclude that the prosecution failed to
establish a "carjacking" under federal law, that does not
necessarily place defendants' conduct beyond the reach of
S 1512. In Bell we noted that "[i]f an offense constitutes a
federal crime, it is more likely that an officer investigating
it would be a federal officer, but an offense's status as a
federal crime has no relationship with the defendant's
subjective belief about the individual investigating it." Id. at
1349. Similarly, a defendant's subjective state of mind has
no relationship to whether or not the government will be
able to prove that the defendant's conduct violates a
substantive federal law. One who attempts to corruptly
influence an investigation takes his or her witnesses and
investigations as he or she finds them. Thus, if the
investigation or prosecution a defendant tries to hamper
turns out to be federal, the witness is guilty of tampering
with a federal witness even if the prosecution is unable to
establish the facts necessary to establish a violation of
federal law. The statute clearly states that it prohibits an
attempt to "hinder, . . the communication . . . of
information relating to the commission or possible
commission," of a federal offense. When the government
13
charges a defendant with violating federal law, but fails to
prove the defendant's guilt, a communication about that
prosecution or investigation is clearly one that concerns a
"possible" violation of federal law.
It is the integrity of the process, and the safety of those
involved in it that Congress was seeking to protect in
enacting S 1512. A federal prosecution remains federal in
character for purposes of the umbrella of S 1512 even if it
is in federal court only by accident or mistake. The issue of
whether authorities are correct when they select a federal
forum over a state forum does not alter the federal nature
of the prosecutions brought in federal court insofar as a
violation of 18 U.S.C. S 1512 is concerned.
Here, the evidence clearly showed that the defendants
attempted to persuade Newton to give false information in
an investigation that was prosecuted in federal court.
Consequently, we will affirm the convictions for hindering
communication of information to a federal officer under 18
U.S.C. S 1512(b)(B)(3).
3. Destruction of Evidence.
18 U.S.C. S 1512(b)(2) provides in pertinent part that it is
illegal for anyone to intentionally "alter, destroy, mutilate,
or conceal an object with intent to impair the object's
integrity or availability for use in an official proceeding." 18
U.S. C. S 1512(b)(2)(B) defines an "official proceeding" as
a proceeding before a judge or court of the United
States, a United States magistrate, a bankruptcy judge,
a judge of the United States Tax Court, a special trial
judge of the Tax Court, a judge of the United States
Claims Court, or a Federal grand jury; . . . .
Here, Count 4 of the superseding indictment charges
Romero and Applewhaite with intentionally causing another
person to destroy evidence to be used in an official
proceeding by persuading someone to paint over the blood
that had splattered onto the stone wall in front of Lydia
Romero's house. The defendants assert different reasons in
arguing that there is insufficient evidence to sustain their
convictions for the destruction of evidence.
14
Lydia Romero argues that the government presented
absolutely no evidence "that Romero persuaded or
attempted to persuade anybody to destroy evidence."
Romero's Br. at 25. We disagree. The Hepburns testified
that they saw Romero and a young Spanish or Puerto Rican
male painting the stone wall on the morning of April 20th.
They also testified that the wall had never been painted
during the preceding 18 years. Forensic analysis later
disclosed blood on the wall and in the soil abutting the
wall, and the parties stipulated that it was Eddie Romero's
blood. The jury could rely upon that evidence to reasonably
conclude that Romero persuaded the young male to paint
the wall in order to "impair the [wall's] integrity or
availability for use in an official proceeding."
Applewhaite argues that the government has produced no
facts from which the jury could reasonably conclude that
"their actions might impair an objects (sic) use in a federal
proceeding." Applewhaite's Br. at 27. We disagree for the
reasons set forth in our discussion of United States v. Bell,
Supra. We conclude that the evidence was sufficient to
convict both defendants for destruction of evidence under
18 U.S.C. S 1512. The jury could reasonably infer that the
defendants persuaded the young male to paint the stone
wall in order to destroy evidence to be used in an official
proceeding. Consequently, the defendants' convictions for
the destruction of evidence will be affirmed.5
_________________________________________________________________
5. The government has not produced any evidence by which the jury
could reasonably conclude that Applewhaite had any part in specifically
persuading the young male to paint the stone wall. Consequently,
Applewhaite's liability for the destruction of evidence is co-
conspirator's
liability. See Pinkerton v. United States, 328 U.S. 640 (1946). However,
Applewhaite does not argue that he cannot be liable as a co-conspirator
where there is no evidence of a specific agreement to destroy evidence,
and where there is no evidence that he played any part in the
commission of the substantive crime of destruction of evidence.
Accordingly, we need not decide if the government proved that the
destruction of evidence was within the scope of the conspiracy. Id. at
647-48.
15
IV. REVERSAL OF THE CARJACKING CONVICTION
DOES NOT AFFECT THE CONSPIRACY CONVICTION.
Even though we conclude that the prosecution did not
prove the defendant guilty of carjacking -the first alleged
object of the charged conspiracy- we hold that the evidence
was nevertheless sufficient to sustain the defendants'
conviction for conspiracy.
Where three different crimes are alleged as objects of a
conspiracy, a conviction for conspiracy will be upheld if
there is "sufficient circumstantial evidence to prove beyond
a reasonable doubt that [the alleged conspirators]
knowingly and intentionally committed acts furthering any
of the three objects of the conspiracy [absent circumstances
not present here]." United States v. Carr, 25 F.3d 1194,
1201-1202 (3d Cir. 1994) (citing Griffin v. United States,
502 U.S. 465, 56-57 (1991)("[W]hen a jury returns a guilty
verdict on an indictment charging several acts in the
conjunctive, . . . , the verdict stands if the evidence is
sufficient with respect to any one of the acts.") (citation
omitted)). The government met its burden as to the charged
violations of 18 U.S.C. S 1512, and those crimes were
charged as objects of a conspiracy under 18 U.S.C.S 371.
Accordingly, the defendants' conspiracy convictions will be
upheld.
V. TERRITORIAL CONVICTIONS.
A. Attempted First Degree Murder.
Appellants' penultimate argument is that there was
insufficient evidence to support their convictions for
attempted first degree murder and aiding and abetting
under 14 Va. I. C. SS 922, 3316 and 11. Applewhaite argues
_________________________________________________________________
6. 14 Va. I. C. S 331 provides:
Whoever unsuccessfully attempts to commit an offense, shall,
unless otherwise specially prescribed by this Code or other law, be
punished by--
(1) imprisonment for not more than 25 years, if the offense
attempted is punishable by imprisonment for life; or
16
that there was insufficient evidence to allow the jury to find
premeditation, and Romero argues the evidence was
insufficient to allow the jury to conclude that she played
any part in the attempted murder of her husband.
Virgin Islands criminal law distinguishes betweenfirst
and second degree murder as follows: "All murder which
. . . is perpetrated by means of poison, lying in wait, torture
or any other kind of wilful, deliberate and premeditated
killing . . . is murder in the first degree. . . . All other kinds
of murder are murder in the second degree." 14 Va. I. C.
S 922. As we explained in Government of the Virgin Islands
v. Roldan, 612 F.2d 775 (3d Cir. 1979):
To premeditate a killing is to conceive the design or
plan to kill. . . . A deliberate killing is one which has
been planned and reflected upon by the accused and is
committed in a cool state of the blood, not in sudden
passion engendered by just cause of provocation. . ..
It is not required, however, that the accused shall have
brooded over his plan to kill or entertained it for any
considerable period of time. Although the mental
processes involved must take place prior to the killing,
a brief moment of thought may be sufficient to form a
fixed, deliberate design to kill. . . .
Id. at 781 (quoting Government of the Virgin Islands v. Lake,
362 F.2d 770, 776 (3d Cir. 1966). "[A] brief moment of
deliberation can suffice," Government of the Virgin Islands v.
Charles, 72 F.3d 401, 410 (3d Cir. 1995), to establish the
premeditation required for first degree murder. Moreover,
the law recognizes the near impossibility of proving one's
state of mind by direct evidence. Accordingly, one's mental
state is ordinarily determined from the circumstances
surrounding a killing. Charles, 72 F.3d at 410
("premeditation can generally be proved only by
circumstantial evidence.")
_________________________________________________________________
(2) in any other case, imprisonment for not more than one-half of
the maximum term, or fine of not more than one-half of the
maximum sum prescribed by law for the commission of the offense
attempted, or by both such fine and imprisonment.
17
If premeditation is found it must ordinarily be inferred
from the objective facts. Every sane man is presumed
to intend all the natural and probable consequences
flowing from his deliberate acts. . . . Accordingly, if one
voluntarily does an act, the direct and natural
tendency of which is to destroy another's life, it may
fairly be inferred, in the absence of evidence to the
contrary, that the destruction of that other's life was
intended.
Roldan, 612 F.2d at 781 (citation omitted). In addition,
under Virgin Islands law one who assists another in the
commission of a murder is guilty of aiding and abetting and
is viewed in the same light as the principal who actually
committed the crime. 14 Va. I. C. S 11 provides, in relevant
part, as follows:
(a) Whoever commits a crime or offense or aids, abets,
counsels, commands, induces or procures its
commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if
directly performed by him or another person would be
a crime or offense, is punishable as a principal.
(c) Persons within this section shall be prosecuted and
tried as principals, and no fact need be alleged in the
information against them other than is required in the
information against the principal. . . .
Here, the jury inferred that Applewhaite had a
premeditated plan to kill Eddie Romero. Given the evidence,
the jury could hardly have inferred anything else; and
Applewhaite's argument that the evidence was not sufficient
to support the jury's conclusion approaches frivolity. After
being summoned to his wife's home, Eddie Romero got out
of his van and stood unsuspectingly resting against a
nearby stone wall with his back to Applewhaite. As Eddie
stood in this position facing his wife, Applewhaite snuck up
behind him and struck him three times with a baseball bat.
Not satisfied with the severe injuries the bat inflicted,
Applewhaite thereafter shot Romero at close-range on two
separate occasions. As noted above, we fail to see how any
reasonable jury could conclude that Applewhaite did not
18
intend to kill Eddie Romero. He clearly had a premeditated
plan to do so.7
Lydia Romero was part of that plan. In fact, the
847circumstantial evidence, including her relationship to
Eddie, supports an inference that it was her plan to begin
with even though Applewhaite was the actual assailant.
However, whether the plan was conceived by Applewhaite
or Lydia is irrelevant. It is clear that Lydia aided and
abetted Applewhaite in his use of force, and she was
properly convicted for doing so. Lydia lured Romero to her
house so that Applewhaite could attack him from behind,
and Applewhaite did just that. When Eddie Romero got out
of his van, Lydia Romero was waiting outside in the front
yard of her home. She told Eddie Romero to wait outside
the stone wall until she penned the dogs; however, she
made no move to pen them. Instead, she remained in place,
staring at her husband while Applewhaite approached from
behind with bat in hand. From these facts, the jury could
reasonably conclude that Lydia Romero summoned Eddie
to her home and then deliberately diverted her husband's
attention so that Applewhaite could ambush him from
behind. As noted above, Eddie Romero's survival is due to
his good fortune, and the Keystone Cop-like manner in
which the defendants executed their plan. However, it is
not because Applewhaite and Lydia did not intend to kill
him.
Accordingly, the defendants' conviction for attempted first
degree murder will be affirmed.
B. Kidnapping.
The Virgin Islands kidnapping statute provides, in
relevant part, as follows:
Whoever without lawful authority confines another
person . . . against his will, or confines or inveigles or
kidnaps another person, with intent to cause him to be
_________________________________________________________________
7. Applewhaite argues there is no evidence of premeditation because he
claims that he hit Eddie Romero in defense of Lydia Romero and that the
shootings were accidental. However, the jury did not believe Applewhaite.
19
confined or imprisoned . . . against his will . . . is guilty
of kidnapping . . . .
14 Va. I. C. S 1051. Applewhaite argues that the evidence
was insufficient to allow the jury to find that Eddie Romero
was intentionally confined against his will.
After beating Eddie Romero into unconsciousness,
Applewhaite, put Romero's body into Romero's van, and
drove away, apparently while wearing latex gloves. When
Romero later regained consciousness inside the van he was
greeted with bullets from the gun that Applewhaite was
holding on him while driving the van. All of this followed a
struggle in which Eddie Romero apparently tried to wrest
control of the steering wheel and/or gun away from
Applewhaite. Applewhaite insists that he did not knowingly
confine Romero against his will because his only intent in
placing Romero in the van was to take him to the hospital.
That of course was a credibility question that the jury
resolved against Applewhaite. Apparently, the jury
concluded that after clubbing Romero from behind with a
baseball bat, slipping into his latex driving gloves then
shooting him at point blank range when he regained
consciousness; Applewhaite's planned itinerary for Romero
did not include the local hospital. That is a reasonable
inference.
Lydia Romero argues that there is no evidence from
which the jury could conclude that she played any part in
kidnapping her husband. Again, we disagree. Romero's
liability for the kidnapping is as an aider and abetter. The
jury could reasonably find that Applewhaite and Romero's
plan included doing something to dispose of Eddie's body
after killing him. The jury could further conclude that the
"something" that the assailants had decided upon was
stuffing Romero into his own van and transporting him
away from the front of Lydia's home, and that Lydia's
involvement in this scheme certainly furthered Romero's
abduction. Indeed, as noted above, she was the one who
lured him into position. Moreover, the Hepburns' testimony
about hearing Lydia's van drive off and then return
certainly an inference that she followed Applewhaite as he
took Eddie away, and then gave Applewhaite a ride back to
20
her home after he abandoned the van with Eddie inside of
it.
Consequently, we will affirm the defendants' convictions
for kidnapping.
VI. CONCLUSION.
To summarize: we will affirm defendants' convictions for
the federal charges of conspiracy, hindering the
communication of information relating to the commission of
a federal offense, and destruction of evidence to be used in
an official proceeding. We also affirm the territorial
convictions for attempted first degree murder and
kidnapping. However, we will reverse the convictions for
carjacking and remand for resentencing.8
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
8. Originally, Applewhaite was sentenced to a term of incarceration of 60
months on Count 1; 264 months on Count 2; 120 months on Count 3;
120 months on Count 4; 20 years on Count 5 and 10 years on Count 6,
with Counts 1, 3 and 4 to run concurrently with Count 2 and Counts 5
and 6 to run concurrently with Counts 1, 2, 3 and 4. Romero was
sentenced to 60 months on Count 1; 300 months on Count 2; 120
months on Count 3; 120 months on Count 4; 20 years on Count 5; and
10 years on Count 6 with Counts 1, 3 and 4 to run concurrently with
Count 2 and Counts 5 and 6 to run concurrently with Counts 1, 2, 3
and 4.
21