[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 22, 2009
No. 08-10513
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00162-CR-T-27-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT CURTIS COVINGTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 22, 2009)
Before CARNES, HULL and COX, Circuit Judges.
CARNES, Circuit Judge:
Robert Covington appeals his sentence and convictions under 18 U.S.C. §
1958 for using an interstate facility with the intent that a murder for hire occur.
He raises six issues: three challenges to his convictions based on the admissibility
and sufficiency of the evidence against him and three challenges to his sentence
based on the applicability of the Armed Career Criminal Act, 18 U.S.C. § 924(e),
the grouping of his convictions under the sentencing guidelines, and the
reasonableness of his consecutive sentences.
I.
In October 2005 Covington beat up his girlfriend Kristy Cotto and
threatened her with a gun. After a neighbor called 911, Covington was arrested.
Because of his prior record, he expected a stiff sentence for the assault and gun
possession. From jail, Covington called Cotto repeatedly and wrote her at least
one letter urging her not testify against him.
After he was released from jail on bond, Covington sought to have Cotto
killed. He contacted his friends Pumpkin and Wes (a married couple) in West
Virginia about having Cotto murdered. Covington sent $300 and some cocaine to
Wes as a down payment for the job. Wes called Stan, a drug dealer from Virginia,
to sub-contract the hit. Stan enlisted the help of his acquaintance Towner, who he
knew had been involved with drugs. Stan repeatedly solicited Towner to do a
2
“job” for him that would pay $5,000. Once Towner learned that the job was not a
drug run, as he had expected, but instead a murder, he contacted the FBI. Under
the FBI’s guidance, Towner began recording his phone conversations with Stan
and later his conversations with Covington.
During recorded conversations, Covington and Towner discussed various
amounts of cocaine as payment for the murder. They also discussed details of the
crime, including Covington’s desire that Cotto be shot in the head, his opinion that
a small-caliber gun was preferable, and his belief that after the murder Towner
could escape while Covington was jailed as a suspect. After Towner requested
money for his travel to Florida, Covington got Pumpkin to pass along the $300
Covington had earlier sent to Wes.
In March 2006 Towner traveled to Florida and, along with an undercover
sheriff’s deputy, met with Covington. At the meeting Covington drew them a map
to Cotto’s house and stated that he hoped to escape the charges pending against
him once she was dead. He also suggested, that they enter her house by telling
Cotto that they were police officers. After the meeting Covington was arrested.
Confronted with tape recordings of himself, Covington confessed to police,
admitting that he had contacted Wes and Stan about having Cotto killed and that
he had sent $300 and a half-kilo of cocaine to Wes as a down payment.
3
Covington was indicted on three counts: Counts 1 and 2 for conspiracy and
using interstate facilities with the intent that a murder for hire occur, both in
violation of 18 U.S.C. § 1958, and Count 3 for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). Count 3 also alleged that Covington
had three prior predicate offenses, which were specified, and for that reason was
subject to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).
Covington pleaded guilty to Count 3 and was convicted by a jury on Counts 1 and
2. The district court sentenced Covington to 120 months on each of Counts 1 and
2 to run concurrently and to 360 months on Count 3 to run consecutively, for a
total sentence of 480 months. He appeals his convictions and sentences.
II.
A.
First, Covington contends that the district court abused its discretion and
violated Federal Rules of Evidence 404(b) and 403 when it admitted three pieces
of evidence on the murder for hire charges: (1) Cotto’s testimony describing how
Covington beat her during the incident in October 2005; (2) the handgun that
Covington threatened her with during that incident; and (3) recorded phone calls
and letters between Covington and Cotto, made while he was in jail, discussing the
beating.
4
Before trial, Covington pleaded guilty to Count 3, the felon in possession of
a firearm charge.1 At trial the remaining counts were conspiracy and the use of an
interstate facility with the intent that a murder for hire occur under 18 U.S.C. §
1958. The government aimed to prove that Covington had arranged to pay for the
murder of his ex-girlfriend Kristy Cotto. The motive for Covington’s crime,
according to the government, was that Covington wanted to keep Cotto from
testifying against him in a domestic violence case. The district court admitted the
gun, the jail communications, and Cotto’s testimony about the assault, but it
provided a limiting instruction to the jury. Evidentiary rulings are reviewed only
for a “clear abuse of discretion.” United States v. Veltmann, 6 F.3d 1483, 1491
(11th Cir. 1993).
Rule 404(b) prohibits the introduction of pure propensity evidence. The
rule states: “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident
1
Covington’s handwritten motion asking the judge to allow him to plead guilty
expressed hope that his guilty plea to the possession charge would make his gun possession and
his domestic assault on Cotto irrelevant and lead to the exclusion of any evidence about them
from his trial on the other § 1958 charges.
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. . . .” Under Rule 404(b), evidence that “[1] concerns the context, motive, and
set-up of the crime and is linked in time and circumstances with the charged crime,
or [2] forms an integral and natural part of an account of the crime, or [3] is
necessary to complete the story of the crime for the jury” is admissible. United
States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997).
In deciding to admit the government’s proffered evidence, the district court
ruled that the jail correspondence was an “integral and natural part of an account”
of the offense. See Smith, 122 F.3d at 1359. As for the gun and Cotto’s testimony
about the assault, the district court found that they were also admissible under
Rule 404(b) as evidence of Covington’s intent and motive for the murder for hire
scheme. See Fed. R. Evid. 404(b).
Covington contends that the district court abused its discretion in finding
the jail correspondence, Cotto’s testimony, and the gun admissible. He argues that
it was improper propensity evidence—a way for the government to portray him as
a desperate, conniving, and violent man who was generally the sort of thug who
might arrange a murder for hire.
It is clear, however, that the jail communications were “necessary to
complete the story of the crime,” Smith, 122 F.3d at 1359, and they also prove
motive. The letters and phone calls show that Covington fully realized that
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Cotto’s testimony against him would likely lead to a long prison sentence. They
also show that Covington desperately wanted Cotto not to testify, but he could not
assure himself that she would not and so had reason to want her dead.
The gun and Cotto’s testimony about it and the assault were also “integral
and natural part[s] of an account of the crime” under Smith, 122 F.3d at 1359. The
trial was about a murder for hire. The motive was to silence the testimony of
Cotto against Covington. The trouble Covington was in if Cotto did testify is an
important part of the story about this crime. It was the motive and motive is an
integral part of any crime. As for admission of the handgun with which Covington
had threatened Cotto during or soon after the assault, the use of it is part of the
reason Covington had to believe that he faced a long prison sentence if Cotto lived
to testify.
Covington also argues that, even if the jail communications, Cotto’s
testimony, and the handgun were admissible under Rule 404(b), they should have
been excluded under Rule 403 because their probative value was “substantially
outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. Obviously
domestic violence, when irrelevant to the charge at hand, has “great potential to
incite unfair prejudice.” United States v. Hands, 184 F.3d 1322, 1328 (11th Cir.
1999). In Hands, where the defendant faced narcotics charges, we concluded that
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evidence of domestic abuse should have been excluded both for irrelevance and
for unfair prejudice under Rule 403. Id. at 1329 (noting that spousal abuse is
“particularly likely to incite the jury to an irrational decision [especially where the
testimony and evidence were] graphic and arresting”).
Hands is distinguishable. Evidence of domestic violence is unfair
propensity evidence in an ordinary narcotics case. But in a murder for hire case
like this one, where the defendant wanted his girlfriend dead to keep her from
testifying about his pistol-waving assault on her, evidence of the key abusive
episode is a critical part of the story. It has significant probative value, and any
prejudice flowing from it is not “unfair.” See Fed. R. Evid. 403; United States v.
Merrill, 513 F.3d 1293, 1301 (11th Cir. 2008) (noting that Rule 403 is “an
extraordinary remedy which should be used only sparingly”) (quotation marks
omitted).
B.
Second, Covington contends that the government presented insufficient
evidence to prove the element of ‘use of interstate facilities’ under 18 U.S.C. §
1958. The statute provides that whoever “travels in or causes another . . . to travel
in interstate or foreign commerce, or uses or causes another . . . to use the mail or
any facility of interstate or foreign commerce, with intent that a murder be
8
committed [for payment]” violates 18 U.S.C. § 1958(a). The telephone system is
clearly a “facility of interstate . . . commerce.” 18 U.S.C. § 1958(b); see also
United States v. Drury, 396 F.3d 1303, 1311–12 (11th Cir. 2005). Covington
does not dispute that but argues that it is not “use” of an interstate facility to
receive a phone call from out of state, which he did. He cites by analogy Watson
v. United States, 552 U.S. __, 128 S. Ct. 579, 581 (2007), which held that
receiving a firearm in a drug transaction is not “using” a gun.
The Watson opinion instructs that, in interpreting the term “use,” we should
look to its “ordinary or natural meaning.” 128 S. Ct. at 581 (quotation marks
omitted). In keeping with that instruction, the Court has established that trading a
gun for drugs is “use” of a gun, Smith v. United States, 508 U.S. 223, 228–30, 113
S. Ct. 2050, 2053–55 (1993), but simple possession of a gun during a drug deal is
not “use” of it, Bailey v. United States, 516 U.S. 137, 143, 116 S. Ct. 501, 506
(1995), and receiving a gun in exchange for drugs is not “use” of the gun either,
Watson, 128 S. Ct. at 581. The basic premise is that “use” of an object requires
the “active employment” of that object by the defendant. Id. (emphasis omitted).
Answering a telephone and conversing on it is “active employment” of the
telephone. As the FBI’s recordings show, Covington actively employed the phone
to convey information, including the details of the crime and how much cocaine
9
would be paid to the intended hit man, who was located four states away in
Virginia.
Covington argues that even if he “used” the phone, he did so only because
the FBI’s informant set him up by intentionally calling him from out of state.
Covington asserts that kind of set up was not permitted in United States v. Coates,
949 F.2d 104 (4th Cir. 1991). In the Coates case an undercover detective who
lived in the same state as Coates crossed a state line to place a phone call to Coates
just to gain federal jurisdiction. Id. at 105–06. The Fourth Circuit reversed
Coates’ conviction, adopting the view that “federal jurisdiction in criminal
prosecutions should not be recognized when patently contrived by means adopted
solely for the purpose of creating a federal crime.” Id. at 106.
Covington’s analogy to Coates will not work. This case would be similar
to Coates only if Towner, the FBI’s informant, had lived in Florida, like
Covington, and had driven to another state in order to call Covington solely to
manufacture federal jurisdiction. But here the informant Towner lived in Virginia,
and was solicited repeatedly in Virginia by one of Covington’s co-conspirators
before Towner even became an informant. An interstate scheme was underway in
this case well before the FBI got involved. The FBI did not contrive to make the
phone calls in order to manufacture the interstate element as was the case in
10
Coates, but only collected more and better evidence of the crime. Covington’s
“use” of the phone system is sufficient to satisfy the interstate facilities element
under 18 U.S.C. § 1958.
Not only that, but there were also plenty of other interstate facilities that
Covington used and plenty of activities that crossed state lines. Covington
originally hired Wes, who did not live in Covington’s home state of Florida, to kill
Cotto. It also appears that Covington “caused” Towner to travel from Virginia to
Florida, and that Covington “caused” his co-conspirator Pumpkin to send a postal
money order from West Virginia to Towner in Virginia.
C.
Third, Covington contends that the government presented insufficient
evidence of any payment to, or of an agreement to pay, anyone for the murder. 18
U.S.C. § 1958(a) requires the government to show “intent that a murder be
committed . . . as consideration for the receipt of, or as consideration for a promise
or agreement to pay, anything of pecuniary value . . . .” See also United States v.
Hernandez, 141 F.3d 1042, 1057 (11th Cir. 1998) (explaining that the statute
“undeniably contemplates a quid-pro-quo (or at least the promise of such) between
the parties to the transaction, the murderer and the solicitor”).
11
Covington argues that nowhere in the recorded phone conversations did he
promise to pay Towner anything for the murder, either in drugs or money. He also
characterizes the government’s evidence of his possible future payment as “limited
and inconclusive,” says that the amount of drugs to be paid varied widely from
half a kilo to six kilos of cocaine, and asserts that Towner never actually received
any money or drugs.
The evidence proved that Towner received a $300 money order from
Pumpkin, the wife of the man to whom Covington admitted he sent $300 to the hit
man. Covington referred to the $300 in a recorded phone conversation in which
he told Towner that he “shot them three up there.” That $300 eventually reached
Towner through Pumpkin after Covington, in another recorded phone
conversation, said: “[d]on’t make me come to Virginia to get my shit.” FBI agent
Rivera, who interviewed Covington after his arrest and Miranda warnings,
testified that Covington told him that he had sent $300 to Pumpkin’s husband Wes
to pay for the hit man’s travel to Florida.
Agent Rivera also testified that Covington told him he had paid Wes half a
kilo of cocaine for killing Cotto. Towner corroborated Covington’s confession by
confirming that he first expected to be paid $5,000 for the murder, but that over
time the negotiations focused on kilos of cocaine. Towner testified that near the
12
end of the conspiracy he and Covington had discussed six kilos of cocaine, valued
at between $90,000 and $150,000, as the price for the murder.
Viewing the evidence in the light most favorable to the government, see
United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003), the
record—including Covington’s own confession—shows that from day one
Covington tried to contract for the murder of Cotto using money and cocaine.
Plenty of evidence supports the consideration element of § 1958.
III.
Having rejected all of Covington’s challenges to his convictions, we turn to
his three attacks on his forty-year sentence.
A.
First, Covington contends that the district court erred when it applied the
ACCA, 18 U.S.C. § 924(e)(1), in sentencing him. Covington argues that one of
his three predicate offenses, specifically his conviction for battery in a detention
facility in 1991, was constitutionally invalid. Although admitting that he pleaded
guilty to that offense, he claims he had ineffective counsel and was absent from
his own plea colloquy in that case.
Two separate problems doom Covington’s argument. First, neither a claim
that predicate conviction counsel was ineffective nor a claim that the guilty plea
13
leading to that conviction was not knowing and intelligent is cognizable under §
924(e).2 Custis v. United States, 511 U.S. 485, 496, 114 S. Ct. 1732, 1738 (1994)
(rejecting Custis’ claims that his predicate offenses involved ineffective assistance
of counsel and lacked a knowing and intelligent guilty plea as inappropriate
attempts to gain federal review of state court convictions through § 924(e)).
Moreover, Covington pleaded guilty to Count 3 of his superseding
indictment in this case. Count 3 alleged that he had possessed a firearm in
violation of § 922(g)(1); it listed his three prior felonies for armed possession of
cocaine, battery in a detention facility, and robbery; and it alleged that he qualified
for ACCA, § 924(e)(1). Covington’s knowing and informed plea of guilty to
Count 3, which included a plea colloquy that addressed the ACCA and its possible
penalties, amounted to an express admission that § 924(e)(1) applied to his case.
See United States v. Moore, 425 F.2d 1290, 1291 (5th Cir. 1970) (“A plea of
guilty knowingly and understandingly made is an admission of all facts alleged in
the indictment or information . . . .”);3 United States v. Bennett, 472 F.3d 825, 833
2
Complete denial of counsel is cognizable under Custis, see 511 U.S. at 496, 114 S. Ct.
at 1738, but Covington does not deny that he had counsel in the 1991 battery case, and the
district court found that Covington was present at the plea hearing before his conviction in that
case.
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
14
(11th Cir. 2006) (“After the district judge's thorough instructions, Bennett
admitted that he had been convicted of three prior violent felonies [because they
were alleged in the indictment and discussed at the plea colloquy]. This alone
authorized the district court to sentence Bennett as an armed career criminal under
§ 924(e).”). The facts here are virtually identical to those in the Bennett case.
Under that decision, as well as Custis, Covington’s challenge to his ACCA-
enhanced sentence is meritless.
B.
Second, Covington contends that the district court improperly grouped his
three convictions. After Covington pleaded guilty to Count 3, the felon in
possession charge with the ACCA penalty, he was tried and found guilty of
Counts 1 and 2, the murder for hire and conspiracy charges under 18 U.S.C. §
1958. The district court did group Counts 1 and 2 for sentencing purposes, but it
considered Count 3 to be a separate group. Covington argues that this grouping
was improper under U.S.S.G. § 3D1 and that it resulted in a base offense level of
37 rather than 36. That difference allegedly converted his applicable guidelines
range from 324 to 405 months into 360 months to life.
Section 3D1.2 states that counts “involving substantially the same harm”
must be grouped together. U.S.S.G. § 3D1.2. Subsection 3D1.2(b) specifies that
15
the phrase “substantially the same harm” covers counts that “involve the same
victim and two or more acts or transactions connected by a common criminal
objective or constituting part of a common scheme or plan.” Id. § 3D1.2(b).
Counts 1 and 2 involved Covington’s scheme to hire a hit man to murder his
ex-girlfriend Cotto. That conduct by Covington occurred in March 2006. The
hiring of the hit man and the conspiracy charge focused on the same victim and
were part of a “common criminal objective” under § 3D1.2(b). That is why the
district court grouped those two counts together.
But Count 3 was a simple felon in possession charge stemming from a
domestic violence dispute in October 2005 in which Covington threatened Cotto
with a pistol. To begin with, the murder for hire and possession charges do not
appear to “involve the same victim” under § 3D1.2(b). The guidelines’
commentary states that some offenses, such as drug and immigration offenses,
have no identifiable victim and that in those cases society at large is considered
the victim. U.S.S.G. § 3D1.2 n.2. Presumably, then, although Cotto was the
intended victim in the murder for hire scheme, society as a whole was the “victim”
of the firearm possession charge. By itself that distinction would prevent the
district court from grouping Count 3 with the other two.
16
Even if Cotto had been the victim of both crimes, Count 3 did not share a
“common criminal objective” with the other two counts. The motive for his
murder for hire scheme was to keep Cotto from testifying about his assault on her
in October 2005. There is no reason to believe that Covington wanted Cotto dead
until after he got in trouble for the pistol-waving assault on her. From jail,
Covington tried repeatedly to talk Cotto out of testifying against him. Unable to
persuade her, he undertook a new criminal scheme five months later: her murder.
The possession and the murder for hire were not part of the same plan or scheme,
and they did not share the same criminal objective. The district court did not err in
refusing to group all three of the counts together under U.S.S.G. § 3D1.2.
C.
Third, Covington contends that the district court abused its discretion by
sentencing him to forty years imprisonment. He argues that the court’s evidentiary
rulings show that it considered all three counts inextricably intertwined, and that
makes it “manifestly unjust” to sentence him to a consecutive sentence of thirty
years for Count 3 on top of the two ten-year concurrent sentences for Counts 1 and
2.
We review the district court’s imposition of a consecutive sentence only for
an abuse of discretion. United States v. Andrews, 330 F.3d 1305, 1307 (11th Cir.
17
2003). 18 U.S.C. § 3584(b) authorizes the district court to impose a consecutive
sentence provided that it first considers the § 3553(a) factors. Once those factors
are considered, the only limitation on running sentences consecutively is that the
resulting total sentence must be reasonable, and ordinarily a sentence within the
advisory guidelines range is reasonable. United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). Covington bears the burden of demonstrating that his total
sentence is unreasonable. See id.
Covington does not dispute that the district court considered the § 3553(a)
factors in sentencing him. As the district court observed, a number of the §
3553(a) factors supported the imposition of a consecutive sentence. They include:
Covington’s violent criminal history, the seriousness of his murder for hire
offenses, the need to promote respect for the law, his broad disregard for the safety
of others, and evidence that he perjured himself during the trial. The resulting
sentence totaled 480 months, which is within the 360 months-to-life range set by
the guidelines.
Covington’s sentence was reasonable, and the district court did not err in
applying the ACCA, nor did it err in refusing to group Count 3 with Counts 1 and
2 under the sentencing guidelines.
AFFIRMED.
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