UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-60263
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SHERI LARA SHARPE,
Defendant-Appellant.
No. 97-60704
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SHERI LARA SHARPE; THOMAS LESLIE HOLCOMB;
PETER HALAT, JR.; AND KIRKSEY MCCORD NIX, JR.
also known as J R, also known as Junior, also known as Kirk,
Defendants-Appellants.
Appeals from the United States District Court
For the Southern District of Mississippi
October 20, 1999
Before POLITZ, JOLLY and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
In this criminal appeal, we examine once again the sordid tale
of Kirksey McCord Nix’s (“Nix”) prison-based criminal empire and
the related murders of Vincent and Margaret Sherry. We first
examined these events in United States v. Sharpe, 995 F.2d 49 (5th
Cir. 1993) (“Sharpe I”). Since Sharpe I new facts have come to
light implicating Thomas Leslie Holcomb (“Holcomb”) and Peter
Halat, Jr. (“Halat”) in the Sherrys’ murder. As a result of this
new information a grand jury issued a fifty-two count indictment
against Nix, Holcomb, Halat, and Sheri LaRa Sharpe (“Sharpe”).
Following a new trial (“Sharpe II”), Nix and Sharpe were again
convicted. Additionally, the jury convicted both Holcomb and Halat
for their respective roles in this affair.
I. BACKGROUND
SHARPE I
While serving a life sentence for murder at Angola State
Penitentiary, Nix built a criminal empire from which he hoped to
earn enough money to buy his way out of prison. Although he
dabbled in insurance fraud and drug dealing, Nix’s primary money-
making scheme was a “lonely hearts” scam designed to defraud
homosexual men. Nix and his prison syndicate would place personal
advertisements in national homosexual magazines. When men would
respond to these ads, Nix or one of his associates would indicate
that he was having financial difficulties and needed the
respondent to wire money to a Nix associate outside prison. Nix
acquired hundreds of thousands of dollars from this scam.
Mike Gillich (“Gillich”), the alleged “underworld boss” of
2
Biloxi, Mississippi, aided Nix in his various schemes. Peter
Halat, a Biloxi attorney, maintained a trust account for Nix.
Nix’s girlfriend, LaRa Sharpe also assisted in the schemes. She
worked out of Halat’s office and along with Halat rented a safety
deposit box in which they kept cash generated by Nix’s operations.
In December 1986, Halat told Nix and Gillich that
approximately $100,000 of Nix’s money was missing from the office
trust account. Halat indicated that he suspected Vincent Sherry,
Halat’s former law partner and a Mississippi Circuit Judge, of
stealing the money. Coincidentally, Judge Sherry’s wife Margaret
was a Biloxi mayoral candidate critical of Gillich’s operations.
The prosecution produced evidence that the three men arranged to
have the Sherrys killed. In September 1987 Halat discovered the
Sherrys dead in their home.
At the first trial for fraud and the attendant murders in
1991, the government argued that Nix, with the assistance of
Sharpe, Sharpe’s mother, and Gillich, hired ex-convict John Ransom
(“Ransom”) to kill the Sherrys. Bill Rhodes (“Rhodes”), an
associate of Ransom’s, testified that Gillich had discussed with
him and Rhodes a possible contract murder. Rhodes testified
further that he was out of town during the murders and that later
Ransom told him that he had murdered the Sherrys. At the first
trial, Gillich insisted that Halat had nothing to do with the
homosexual scam or the murders. As a result, the government did
not prosecute Halat. The jury convicted Nix, Gillich, Sharpe, and
Ransom of wire fraud and conspiracy to commit wire fraud. The jury
3
also found Nix and Gillich guilty of travel in aid of murder-for-
hire. We affirmed these convictions in Sharpe I, 995 F.2d 49 (5th
Cir. 1993).
SHARPE II
Nix continued his schemes from jail after the 1991 trial. The
government also continued its investigation into the scam and
murders. This time, the government concentrated its efforts on
determining what role Halat, by then the Mayor of Biloxi, played in
the crimes. In 1994 Mike Gillich turned state’s evidence in
exchange for a reduction of his Sharpe I sentence. Gillich
admitted that Halat was involved in the scams and the murders.
Moreover, Gillich indicated that it was not Ransom who had murdered
the Sherrys1; but, rather, Thomas Holcomb, a contract killer hired
by Gillich. While the government was procuring Gillich’s
testimony, it was negotiating with Robert Wright (“Wright”) for his
testimony concerning a number of drug deals that he had engaged in
with Nix and his associates. In the end, the government granted
Wright full immunity for his testimony.
As a result of its further investigations and Gillich’s
testimony, the government brought a new indictment against Nix,
Sharpe, Halat, and Holcomb in 1996. The indictment charged Nix
with racketeering, conspiracy to violate the racketeering statute,
fraud, conspiracy to commit wire fraud, money laundering, and
conspiracy to obstruct justice. It charged Sharpe with
1
Gillich insisted that Ransom was involved in the planning of
the murders, but did not actually kill the Sherrys.
4
obstruction of justice and conspiracy to obstruct justice for false
testimony she gave in the 1991 trial. It charged Halat with
obstruction of justice, conspiracy to obstruct justice based on
false statements made during the 1991 investigation and trial
testimony, conspiracy to violate the racketeering statute,
racketeering, and conspiracy to commit wire fraud. Finally, the
indictment charged Holcomb with conspiracy to violate the
racketeering statute and conspiracy to obstruct justice.
After a lengthy trial, the jury began deliberations on July
11, 1997. During deliberations some of the jurors complained that
one of the jurors was making inappropriate sexual remarks and was
refusing to participate in the deliberative process. The judge
overruled a defense motion for a mistrial and investigated the
alleged juror misconduct. Satisfied with his investigation of the
matter, the trial judge sent the jurors back for further
deliberations. On July 16, 1997 the jury rendered a partial guilty
verdict on all of the charges against Nix, Sharpe, and Holcomb and
Halat’s obstruction of justice and conspiracy to obstruct justice
charges. The judge gave the jury an Allen charge and instructed
them to continue deliberating on the charges remaining against
Halat. On July 17, 1997 the jury found Halat guilty of conspiracy
to commit wire fraud and conspiracy to violate the racketeering
statute. Each defendant now challenges his or her convictions on
multiple grounds.
II. ISSUES RAISED BY MULTIPLE DEFENDANTS
5
A. Motion for Mistrial Based on Jury Misconduct
After three days of jury deliberation, the court advised the
parties that it had received several complaints concerning conduct
of juror number six. When a juror complained to the marshal, the
marshal instructed the juror to put his complaints in writing for
the court. The complaints alleged that juror number six used lewd
and sexually explicit language towards other jurors, made sexually
explicit comments about trial participants, behaved rudely, and
made his decision based on factors outside of the evidence. The
court, in the presence of the lawyers and defendants, questioned
each juror individually, asking each to specify any incidents of
sexual misconduct, intimidation, or the interjection of extrinsic
factors into the deliberative process by juror number six. After
the individual inquiries, the judge recalled all the jurors to the
courtroom, and urged them to consider the evidence, to deliberate,
and to act civilly. Finally, the judge polled the jurors, asking
each if they could be impartial, fair, follow the court’s
instructions, and base their verdict only on the evidence and the
law. Each juror responded affirmatively.
The defendants several times objected unsuccessfully to the
judge questioning the jurors, recommending instead that the judge
respond in writing instructing the jury to follow the court’s
instructions. The government several times moved unsuccessfully to
remove juror number six.
The defendants contend that juror misconduct directly
6
impacting the deliberative process warranted a mistrial.2 We
review a district court’s decision to hold a hearing to determine
whether juror misconduct has occurred for abuse of discretion. See
United States v. Chiantese, 582 F.2d 974, 978 (5th Cir. 1978). The
district court did not abuse its discretion in investigating
complaints of sexual harassment, intimidation, and reliance on
extrinsic evidence. In addition, the record does not show that
questioning the jurors in any way impacted the deliberative
process. On the contrary, Judge Pickering proceeded in a very
careful and conscientious manner. He prefaced each inquiry by
reminding the jurors that they were the ultimate judges of fact and
that they should not be influenced by anything he said or did. He
also warned the jurors not to reveal the details of the
deliberative process in their responses. Finally, he consulted
with the lawyers throughout, giving thoughtful consideration to
their suggestions.
B. Sharpe’s and Holcomb’s Motion for Severance
The district court denied Sharpe’s and Holcomb’s motion to
sever. Sharpe asserts that she suffered specific and compelling
prejudice from being tried jointly with Nix and Holcomb. Sharpe
contends that: she was the only defendant not indicted on the drug
conspiracy charge which was the primary focus at trial; she was not
2
The defendants jointly moved for a mistrial prior to the
district court individually questioning the jurors, and Sharpe
again moved for mistrial when, at the end of the district court’s
questioning, the district court did not remove any jurors.
7
charged with murder or conspiracy to murder the Sherrys; and
evidence with no relevance to charges against Sharpe predominated
at trial.
Holcomb contends that the government did not have adequate
evidence to convict him as the trigger man, so it used the RICO
conspiracy charges and voluminous evidence unrelated to him to hold
him guilty by association. Holcomb also contends that his right to
a fair trial was similarly prejudiced because he was tried with Nix
and Sharpe, both of whom previously had been tried and convicted.
He also complains he was denied the use of exculpatory evidence by
his co-conspirators, and his motions for a separate trial were
denied without a limiting instruction to the jury to consider only
the evidence against him.
We review a district court’s denial of severance for abuse of
discretion. See United States v. Hare, 150 F.3d 419, 426 (5th Cir.
1998). A defendant must show “specific and compelling prejudice
against which the district court could not provide adequate
protection, and that this prejudice resulted in an unfair trial.”
See United States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994)
(citations omitted).
Sharpe’s list of witnesses who made no reference to Sharpe and
her assertion that charges against her were peripheral to the
primary focus of the trial do not amount to specific and compelling
proof of prejudice. Furthermore, neither do Holcomb’s allegations
of prejudice regarding guilt by association, the denial of
exculpatory evidence and the lack of limiting instructions to the
8
jury.
C. Government Testimony Violating 18 U.S.C. § 201(c)(2)
All four defendants assert that Gillich’s and Wright’s
testimony should have been suppressed, because the government
criminally bribed them to testify as government witnesses. The
government agreed to reduce Gillich’s twenty-year prison sentence
for a prior conviction to time served, to dismiss bribery charges
against Gillich and others, and to refrain from indicting Gillich’s
daughter and son-in-law. The government granted Wright complete
immunity. 18 U.S.C. § 201(c)(2) creates criminal penalties for
bribing witnesses, and defines bribery as “[d]irectly or
indirectly, giv[ing], offer[ing], or promis[ing] anything of value
to any person, for or because of the testimony under oath . . .
given or to be given . . . as a witness upon a trial . . . .” The
defendants note that the government has given Gillich and Wright
something of value, namely freedom, because of their testimony
against the defendants in this trial.
We review the bribery issue for plain error, since the
defendants failed to object at trial. See United States v. Haese,
162 F.3d 359, 366 (1998). This argument is foreclosed by our
authority that Section 201(c)(2) does not apply to government plea
bargains in exchange for testimony. See id. at 367-68.
III. SHERI LARA SHARPE
A. Motion to Dismiss the Indictment
9
In 1991, the government indicted Sharpe for and a jury
convicted her of conspiracy to commit wire fraud and conspiracy to
commit murder-for-hire. In 1996, the government indicted Sharpe
for and a jury convicted her of seven counts of obstruction of
justice3 and one count of conspiracy to obstruct justice. Sharpe
moved to dismiss the indictment, asserting that: (1) Double
Jeopardy barred her prosecution; (2) the substantive obstruction of
justice charges failed to state a claim under 18 U.S.C. § 1503; and
(3) were multiplicious.
1. Double Jeopardy
Sharpe argues that Count I4 of the 1991 indictment covered
both the 1996 substantive obstruction of justice charges and the
conspiracy to obstruct justice charge.
A subsequent prosecution avoids the Double Jeopardy bar by
3
The substantive obstruction counts arise from separate
portions of Sharpe’s testimony at the 1991 trial. Count 3 involves
Sharpe’s testimony that she never made a three-way call to any
victim of the homosexual scam. Count 4 involves Sharpe’s testimony
that she did not participate in the homosexual scam after Easter of
1986. Count 5 involves Sharpe’s testimony that she never delivered
money to Gillich. Count 7 involves Sharpe’s testimony that she
did not use legal materials in Halat’s and Sherry’s office to
enhance participation in the homosexual scheme. Count 8 involves
Sharpe’s testimony that she had never possessed a silencer. Count
10 involves Sharpe’s testimony that she never discussed the scam
with Gillich. Count 11 involves Sharpe’s testimony that Halat
had no knowledge of the homosexual scam.
4
Count I charged Sharpe with conspiracy to commit wire fraud
and conspiracy to commit murder-for-hire, and stated that “[i]t was
. . . part of the conspiracy that the co-defendants, co-
conspirators and confederates cover up and conceal the objectives
of the conspiracy and their involvement therein.” Count I cited
Sharpe’s receipt of scam money from a Nix confederate in January
and February 1986 as an overt act.
10
satisfying the Blockburger same-elements test.5 Blockburger v.
United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
See also United States v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849,
125 L.Ed.2d 556 (1993). Under the Blockburger test, each offense
must contain an element not contained in the other; if not, they
are the same offense within the Clauses’ meaning and double
jeopardy bars subsequent punishment or prosecution. Id. at 688.
The elements of a Section 371 conspiracy are: (1) an agreement
between the defendant and one or more other persons to violate a
law of the United States; (2) an overt act by one of the
conspirators in furtherance of the conspiracy; and (3) the
defendant’s intent to further an unlawful objective of the
conspiracy. See 18 U.S.C.A. § 371 (West 1984); United States v.
Razo-Leora, 961 F.2d 1140, 1144 (5th Cir. 1992). The relevant
“laws of the United States” for the purpose of the 1991 indictment
were murder-for-hire6 and wire fraud.7 The elements of obstruction
5
The Supreme Court developed the Blockburger test, a rule of
statutory construction triggered when the same conduct violates
more than one statutory provision. See Garrett v. United States,
471 U.S. 773, 778-79, 105 S.Ct. 2407, 85 L.Ed.2d (1985). The Court
noted that “[i]nsofar as the question is one of legislative intent,
the Blockburger presumption must of course yield to a plainly
expressed contrary view on the part of Congress.” Id. at 779.
6
The elements of murder to hire are: (1) traveling or
causing another to travel in interstate or foreign commerce, or
using or causing another to use the mail or other facility of
interstate or foreign commerce; (2) with intent that a murder be
committed in violation of the laws of any State or the United
States; and (3) as consideration for the receipt of pecuniary value.
See 18 U.S.C.A. § 1958 (West Supp. 1998).
7
The elements of wire fraud are: (1) the defendant knowingly
participated in a scheme to defraud; (2) use of interstate wire
communications to further the scheme; and (3) the defendant
11
of justice are: (1) a judicial proceeding was pending; (2) the
defendant knew of the judicial proceeding; and (3) the defendant
acted corruptly with the specific intent to influence, obstruct, or
impede that proceeding in its due administration of justice. See
18 U.S.C.A. § 1503 (West 1984).
Double Jeopardy does not bar the 1996 substantive obstruction
counts, because they survive the Blockburger test. Regarding the
Blockburger test, obstruction of justice requires specific intent
to obstruct justice and conspiracy does not, while conspiracy
requires an agreement between two or more people and obstruction of
justice does not.
The 1996 conspiracy to obstruct justice count also survives
the Blockburger test. Regarding the Blockburger test, the 1991
conspiracy count required an agreement to further the wire fraud
and murder-for-hire schemes, while the 1996 conspiracy count did
not; the 1996 conspiracy count required an agreement to further the
obstruction of justice scheme, while the 1991 conspiracy count did
not.
The parties vigorously disputed in brief and at oral argument
whether one or two conspiracies existed for Double Jeopardy
purposes. We need not resolve this issue, since even if only one
conspiracy existed, “a person’s participation in a conspiracy ends
when that person is arrested for his role in the conspiracy. . . .
‘[F]urther [participation in an] old conspiracy after being charged
intended some harm to result from the scheme. See 18 U.S.C.A. §
1343 (West 1984); United States v. Powers, 168 F.3d 741, 746 (5th
Cir. 1999).
12
with that crime becomes a new offense for purposes of a Double
Jeopardy claim.’” United States v. Dunn, 775 F.2d 604, 607 (5th
Cir. 1985) (internal citations and quotes omitted). Sharpe’s false
testimony occurred during the wire fraud and murder-for-hire trial,
after she was arrested for conspiracy to commit wire fraud and
murder-for-hire. Thus, even assuming one conspiracy, further
participating in that conspiracy by falsely testifying constituted
a new offense for Double Jeopardy purposes. Although the
conversation with her confederate occurred before the 1991
indictment, the government did not prosecute Sharpe for that
conversation. See United States v. Felix, 503 U.S. at 387.
2. Failure to State a Claim Under 18 U.S.C. § 1503
Sharpe argues that, as a matter of law, perjury at trial alone
does not obstruct the clear administration of justice. Therefore,
the indictment failed to state a violation of 18 U.S.C. § 1503 and
should be dismissed. We disagree. “[W]e defined the statutory
term ‘administration of justice’ as ‘the performance of acts
required by law in the discharge of duties such as appearing as a
witness and giving truthful testimony when subpoenaed.’ . . . The
perjurious witness can bring about a miscarriage of justice by
imperiling the innocent or delaying the punishment of the guilty.”
United State v. Griffin, 589 F.2d 200, 203 n.4, 204 (5th Cir.
1979). Sharpe’s efforts to distinguish false testimony at trial
from the false testimony at a grand jury proceeding in Griffin are
not persuasive, since false testimony in either venue may
13
“imperil[] the innocent or delay[] the punishment of the guilty.”
Id. at 204.
Alternatively, Sharpe challenges the sufficiency of the
evidence of her specific intent to impede the administration of
justice. We review a challenge to the sufficiency of the evidence
by viewing the evidence in the light most favorable to the verdict.
We affirm if a rational trier of fact could have found all
essential elements of the crime beyond a reasonable doubt. United
States v. Sultan, 115 F.3d 321, 324 (1997). Under Section 1503, an
act with the “natural and probable effect” of interfering with the
due administration of justice satisfies the intent requirement for
obstruction of justice. United States v. Aguilar, 515 U.S. 592,
599, 115 S.Ct. 2357, 132 L.Ed.2d 2357 (1995). This record makes
clear that a reasonable jury could have found that Sharpe’s false
testimony concerning Gillich’s, Halat’s, and her own involvement in
the wire fraud and murder-for-hire scheme had the natural and
probable effect of interfering with the due administration of
justice.
3. Multiplicious Substantive Obstruction of Justice Charges
Sharpe asserts that the seven false responses cited in the
indictment were not separate, distinct acts. They were part of a
continuous scheme or transaction, evidenced by the responses all
being given during the same trial, on the same day, and, according
to the government, all for the purpose of covering up the wire
fraud and murder conspiracies. Therefore, they could support only
14
one charge.
Charging a single offense under more than one count of an
indictment is multiplicious and raises the Double Jeopardy specter
of multiple punishments. See United States v. Soape, 169 F.3d 257,
266 (5th Cir. 1999). But an obstruction of justice indictment is
not multiplicious when it contains charges for separate and
distinct acts of perjury, even if the acts are all related and
arise out of the same transaction or subject matter, if they
require different factual proof of falsity. See United States v.
Harrelson, 754 F.2d 1182, 1184 (5th Cir. 1985) (noting separate
perjury charges for separate false declarations are not
multiplicious); United States v. DeLaTorre, 634 F.2d 792, 795 (5th
Cir. 1981) (same); United States v. Nixon, 634 F.2d 306, 313 (5th
Cir. 1981) (same). However, separate counts based on multiple
answers to a rephrased question would be multiplicious. See Id. at
313. In this record each of the substantive obstruction counts
cites a separate instance of false testimony, requiring different
factual proof of falsity. See fn. 3 supra. Therefore, the
obstruction counts are not multiplicious.
IV. NIX AND HALAT
A. Count 1 - RICO
Count 1 alleges the following: Nix, Cook, Halat, Holcomb,
Sharpe (unindicted), and others known and unknown constituted an
enterprise, a group of individuals associated in fact which engaged
in various criminal activities affecting interstate and foreign
15
commerce, including 18 U.S.C. § 1343 (wire fraud), 18 U.S.C. § 1503
(obstruction of justice), 18 U.S.C. § 1512 (obstruction of
justice), 18 U.S.C. § 1952(a) (interstate travel in aid of
racketeering), 18 U.S.C. § 1956(a)(1)(A)(i) (money laundering), 21
U.S.C. § 841(a) (drug trafficking), 21 U.S.C. § 846 (conspiracy to
traffic drugs), Miss. Code Ann. § 97-3-19 (1972), and Miss. Code
Ann. § 97-1-1 (1972). The purposes of the enterprise included
enriching the members and associates of the enterprise and
generating funds for procuring Nix’s release from prison. These
defendants conspired to violate 18 U.S.C. § 1962(c) by conducting
and participating, directly and indirectly, in the conduct of the
affairs of the enterprise, through a pattern of racketeering
activities. The pattern of racketeering activity includes the
following acts: the Sherry murder conspiracy and murders; the pre-
Sharpe I homosexual scam; the drug conspiracy; obstruction of
justice; and the post-Sharpe I homosexual scam.
Nix and Halat moved to dismiss Count 1 as duplicitous,
asserting that it alleged multiple conspiracies rather than one
RICO conspiracy. An indictment is duplicitous if “it joins in a
single count two or more distinct offenses.” United States v.
Baytank, 934 F.2d 599, 608 (5th Cir. 1991). We review such claims
de novo. See United States v. Trammell, 133 F.3d 1343, 1354 (10th
Cir. 1998). We assess the indictment to determine whether it can be
read to charge only one violation in each count. See United States
v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir. 1983). The government
can not “combine totally unrelated agreements and overt acts in a
16
single RICO conspiracy.” See United States v. Sutherland, 656 F.2d
1181, 1194 (5th Cir. 1981). However, if there is a single
“agreement on an overall objective,” multiple conspiracies may be
tried as a single enterprise conspiracy under RICO. Id. at 1192-
93. This indictment alleges enriching the members and associates of
the enterprise and generating funds for procuring Nix’s release
from prison as overall objectives of the conspiracy. It also
alleges that conspiring to kill and killing the Sherrys, the pre-
Sharpe I homosexual scam, the drug conspiracy, obstruction of
justice, and the post-Sharpe I homosexual scam promoted these
overall objectives. Therefore, Count One can be read to allege
only one violation.
Alternatively, Nix and Halat assert that even if the
indictment can be read to allege only one violation, the government
proved multiple conspiracies at trial, creating a fatal variance
from the one conspiracy alleged in the indictment. “A variance
results when the charging terms of the indictment remain unaltered,
but the evidence at trial proves facts other than those alleged in
the indictment.” United States v. Ramirez, 145 F.3d 345, 351 (5th
Cir. 1998). A reversal based on variance between the indictment
and proof requires two findings: (1) that the trial evidence
actually proved multiple conspiracies, and (2) that the variance
affected a substantial right of the appellant. See United States
v. Franklin, 148 F.3d 451, 459 (5th Cir. 1998). Assuming without
deciding that the trial evidence proved multiple conspiracies,
neither defendant proved in this record that any such variance
17
affected a substantial right.
B. Count 51
Count 51 alleges the following: Beginning in 1985 and
continuing until October 26, 1996, the date of the indictment, Nix
and Halat conspired to devise a scheme to defraud by means of wire
(telephone and telegraph) in violation of 18 U.S.C. § 1343. Nix
and his confederates advertised in periodicals soliciting help,
fraudulently claiming they needed financial help to relocate,
travel, and for other expenses. Then they called the respondents
and had them wire funds, either through Western Union or by wire
transfer. The indictment specifically references 66 wire transfers
covering the periods from January 1, 1986 to April 30, 1986 and
from September 15, 1988 to September 22, 1988. The funds were
delivered to Halat and others, for the use and benefit of Nix and
the enterprise. Halat and others maintained and disbursed the
funds as Nix directed. Overt acts included homosexual scam
activity in 1986 and 1988, money laundering activities,8 homosexual
scam activity in 1986 and 1992, homosexual scam activity in 1985
and 1989.
Nix and Halat unsuccessfully moved to dismiss Count 51 as
duplicitous, asserting that the count alleged two separate
conspiracies rather than one conspiracy. We affirm because the
evidence clearly shows that wire fraud conspiracy charged in count
8
The district court dismissed the money laundering charges as
not supported by any evidence.
18
51 did not end with Nix’s conviction; rather, the evidence supports
a single, on-going conspiracy.
V. NIX, HOLCOMB, AND HALAT
Nix, Holcomb, and Halat argue that the statute of limitations
expired before return of the indictment on October 22, 1996 on
Count 1 RICO conspiracy and/or Count 50 and 51 wire fraud
conspiracy. The limitations period for RICO offenses is five years
which begins running upon the accomplishment or abandonment of the
objectives of the conspiracy. United States v. Coia, 719 F.2d
1120, 1124 (11th Cir. 1983). Nix and Halat argue that the
government declared the conspiracy over in Sharpe I in May 1996.
Nix contends that the only acts after Sharpe I were concealment,
which are not part of the conspiracy. Holcomb suggests that the
only acts occurring within the prescription period were the acts of
concealment and an allegedly threatening letter written by Cook
(another co-conspirator) to Swetman (a witness). However, he
contends, none of these acts were done in furtherance of the
conspiracy and thus the statute of limitations was not tolled.
We review limitations challenges for the sufficiency of the
evidence to support them because the scope of the conspiracy and
membership in it are questions of fact for the jury. We review a
challenge to the sufficiency of the evidence by viewing the
evidence in the light most favorable to the verdict. We affirm if
a rational trier of fact could have found all essential elements
beyond a reasonable doubt. Sultan, 115 F.3d at 324. However, the
plain error standard applies to Nix’s and Halat’s limitations
19
claims because they were not raised before trial. United States v.
Mulderig, 120 F.3d 534,540 (5th Cir. 1997).
On this record we find that there was sufficient evidence to
find that the defendants were involved in ongoing crimes that
tolled the limitations period. The conspiracy was still in
existence in 1992 when Nix and another prisoner received money from
the new and already existing homosexual scam victims. Holcomb
offered to assist Gillich during his Sharpe I difficulties, showing
that he was still willing to assist in the larger RICO and
obstruction of justice conspiracies. The acts done to conceal the
completed crimes were part of the conspiracy and thus tolled the
limitations period. Halat’s acts of concealment, such as
committing perjury, clearly were acts done in furtherance of the
main criminal objectives of the conspiracies.
VI. THOMAS LESLIE HOLCOMB
A. Evidentiary Errors
We review admission and exclusion of evidence for abuse of
discretion. See United States v. Skipper, 74 F.3d 608, 612 (5th
Cir. 1996). “[E]ven if we find an abuse of discretion in the
admission or exclusion of evidence, we review the error under the
harmless error doctrine.” Id. Evidentiary rulings must be
affirmed unless they affect the complaining party’s substantial
rights. See id. Holcomb argues that, considered as a whole, the
district court’s evidentiary errors warrant a new trial. See
United States v. Riddle, 103 F.3d 423, 434-35 (5th Cir. 1997)
20
(cumulative effect of evidentiary errors warranted a new trial).
First, Holcomb maintains that the trial court erred by
excluding the testimony of Bobby Joe Faubion (“Faubion”). Holcomb
argues that Faubion’s testimony would have supported his claim that
John Ransom committed the murders. The proffered testimony was:
(1) Faubion had a phone conversation with Ransom; (2) Ransom told
Faubion that Halat and Nix approached him about killing a judge;
(3) Ransom did not mention Holcomb’s name; and (4) Faubion did not
hear Holcomb’s name in conversations with Nix and others.
Fed R. Evid. 403 provides that “[r]elevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice . . . or needless presentation of
cumulative evidence.” Holcomb offers nothing to rebut the district
court’s finding that the proffered testimony’s prejudice to the
other defendants substantially outweighed its probative value.
Holcomb was able to use other evidence to advance his “other
gunman” defense. Accordingly, we conclude that the district court
did not abuse its discretion by excluding Faubion’s testimony. We
thus need not address the court’s other reasons for excluding the
testimony.
Second, Holcomb contends that the district court erred by
refusing to admit letters of recommendation written by the
Government on behalf of Bill Rhodes (“Rhodes”). The district court
did not refuse to admit the letters but, rather, reserved its
ruling on their admissibility. Assuming the letters were
admissible, Holcomb invited error by failing to renew his offer of
21
proof at trial.
Third, Holcomb argues the district court erred by refusing to
admit exculpatory FBI lab reports relating to hair, fiber, blood,
and print analysis done by FBI lab examiners. Arguing that the
reports were admissible under Fed. R. Evid. 803(8), the public
records exception to the hearsay rule, Holcomb contends that the
reports showed that he was not a match with the samples taken from
the crime scene.9 Holcomb’s reliance on the public records
exception is misplaced. Rule 803(8)(B) excludes “matters observed
by police officers and other law enforcement personnel” in criminal
cases. Further, the district court permitted Holcomb to publish
the contents of the reports to the jury. Thus, Holcomb has not
shown that he was prejudiced by the exclusion of the reports
themselves.
Fourth, Holcomb argues Brett Robertson’s (“Robertson”) in-
court identification was too suggestive because of a newspaper
article and photo Robertson got from his mother. After seeing the
newspaper photo, Robertson advised the government that the photo of
Holcomb in the newspaper was the same person he saw driving a Ford
on September 14, 1987, the night of the Sherry murder. Holcomb
argues that a conviction based in part upon an eyewitness’
photographic identification may be set aside if the procedure was
so impermissibly suggestive as to give rise to a substantial
likelihood of irreparable misidentification. United States v.
9
At trial, Holcomb relied on the Fed. R. Evid. 803(6), the
business records exception.
22
Fletcher, 121 F.3d 187, 194 (5th Cir. 1997). However, Fletcher is
inapplicable because it involved the issue of a photographic line
up prepared by police. In contrast, Robertson’s encounter with
Holcomb’s photograph was unplanned and unexpected, and thus did not
give rise to a due process challenge. United States v. Seader, 440
F.2d 547, 550 (5th Cir. 1971). Holcomb also contends that the
district court should have permitted him to employ an expert
witness to challenge Robertson’s testimony. However, Holcomb has
not shown that the court was obligated to grant the defendant
assistance of an expert under these circumstances. United States
v. Williams, 998 F.2d 258, 263 (5th Cir. 1993)
Fifth, Holcomb argues that the trial court erred by permitting
Baylis, Putnam, Denike, and Osborne to testify about Holcomb’s
other crimes and bad acts. See Fed. R. Evid. 404(b). We review
alleged Rule 404(b) violations under the two-pronged test of United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978). To be
admissible, (1) the extrinsic evidence must be relevant to an issue
other than the defendant’s character and (2) the probative value of
the evidence may not be substantially outweighed by undue
prejudice. See id.; Fed. R. Evid. 403 (stating that relevant
evidence may be excluded if “its probative value is substantially
outweighed by the danger of unfair prejudice”). Regarding the
second prong, the district court made the requisite Rule 403
determination. We consider the first prong in greater detail.
Baylis and Putnam were inmates who testified that Holcomb
admitted to them that he killed the Sherrys. The district court
23
allowed Baylis and Putnam to testify that Holcomb also admitted to
being arrested in Florida and shooting a “snitch” in Texas. Baylis
also testified that he knew Holcomb in the 1970's when Holcomb was
allegedly involved in stealing weapons. The district court
permitted Officer Denike to confirm the details of Holcomb’s
Florida arrest. Holcomb argues that allowing Baylis, Putnam, and
Officer Denike to testify about crimes and bad acts that were not
related to the Sherry murders was error because “[e]vidence of
other crimes, wrong, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith.” Id. The problem with Holcomb’s argument is that the
testimony about his other crimes and bad acts was not offered to
prove that Holcomb acted in conformity with his bad character. See
id. (stating that “[e]vidence of other crimes, wrongs, or acts . .
. may . . . be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.”). Instead, the
evidence was offered to show that Baylis and Putnam had information
that they could only have learned from Holcomb, corroborating their
claim that Holcomb confessed to killing the Sherrys. See United
States v. McCarty, 36 F.3d 1349, 1353-55 (5th Cir. 1994) (holding
that admitting extrinsic evidence to corroborate the defendant’s
confession to a cellmate was not reversible error). The district
court did not abuse its discretion by admitting this evidence.
Similarly, Holcomb contends that Officer Osborne’s testimony
constituted impermissible extrinsic character evidence. Officer
24
Osborne, a Texas law enforcement official, testified that he found
a .22 caliber pistol and a drawing of a silencer during a search of
Holcomb’s home in 1988. The pistol was not the same one used in
the Sherry murders. The district court did not abuse its
discretion by admitting this evidence because it was admitted to
show intent, motive, knowledge, opportunity, and method of
operation. See Fed. R. Evid 404(b).
Finally, Holcomb asserts that the district court erred by
admitting double hearsay. Gillich testified about the conspiracy
in which he, Cook, Holcomb, and others participated. He testified
that, the day after the murders, Cook called Holcomb to ask about
the hit. Gillich testified that Holcomb confirmed murdering the
Sherrys. The district court correctly admitted the testimony
because both Holcomb’s statements to Cook and Cook’s statements to
Gillich were admissible as statements of co-conspirators made in
furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E); see
United States v. Gironda, 758 F.2d 1201, 1216-19 (5th Cir. 1985)
(concluding that the district did not err by permitting a co-
conspirator to testify that another conspirator had told him about
a threatening phone call he received from the defendant).
B. Sufficiency of the Evidence to Convict Holcomb
Holcomb contends that the evidence was insufficient to convict
him on Count 1 and Count 50 because the government did not prove
that he had knowledge of the objectives of the overall conspiracy.
He says the government’s theory assumes he committed the murders
25
but has nothing to do with the homosexual scams, wire fraud, mail
fraud, money laundering, and other activities. We review the
evidence in the light most favorable to the verdict. We affirm if
a rational trier of fact could have found all essential elements of
the crime beyond a reasonable doubt. Sultan, 115 F.3d at 324.
To prove a RICO conspiracy the government must establish (1)
that two or more people agreed to commit a substantive RICO offense
and (2) that the defendant knew of and agreed to the overall
objective of the RICO offense. United States v. Posada-Rios, 158
F.3d 832, 857 (5th Cir. 1998). The evidence was sufficient to
convict Holcomb of the RICO conspiracy. First, Holcomb agreed with
the objective by killing Vincent Sherry. Second, Holcomb agreed to
commit violence and threats of violence to protect the enterprise.
To prove obstruction of justice the government must show an intent
to endeavor to impede the due administration of justice. United
States v. Williams, 874 F.2d 968, 976-82 (5th Cir 1989). Here
again the evidence was sufficient to convict Holcomb of this crime.
Holcomb threatened Swetman to keep him from cooperating with the
government.
VII. HALAT
A. Duplicity
Halat contends that Count 16 of the indictment is duplicitous
and that the district court erred in failing to give a unanimity
instruction to the jury regarding this Count. Count 16 alleged
that Halat violated 18 U.S.C. § 1503 by obstructing justice when he
26
testified falsely in Sharpe I. The indictment included the
following excerpt of the testimony involved:
Question: At some point in time, did you come to learn
whether or not there was a scam, homosexual
scam operating out of Angola in which Kirksey
Nix was involved?
Halat: I came to find out that there was activity
going on at Angola prison that Kirksey Nix was
alleged to be involved in.
Question: When did that happen?
Halat: May of 1988
* * *
Question: As of that date or as of the time you received
the information from the F.B.I., whatever date
that was prior to May 13th, 1988, what
knowledge did you have of your office being
used, as a depositor of scam funds?
Halat: I don’t believe my office was being used as a
depository of scam funds.
Halat argues that Count 16 is duplicitous because it alleged two
separate and distinct answers to two different questions each of
which could support a separate conviction for obstruction of
justice. Halat also contends that the district court erred in
failing to instruct the jury that it must unanimously find that
Halat lied regarding a particular answer.
Halat moved to dismiss the indictment before trial on the
grounds that it was duplicitous, but did not request a unanimity
instruction or object when the district court did not give one.
“An indictment may be duplicitous if it joins in a single Count two
or more distinct offenses.” United States v. Baytank (Houston),
Inc., 934 F.2d 599, 608 (5th Cir. 1991). We have previously held
27
that the government may include several acts within a single Count
where those actions represent a single, continuing scheme provided:
the indictment (1) notifies the defendant adequately of
the charges against him; (2) does not subject to the
defendant to double jeopardy; (3) does not permit
prejudicial evidentiary rulings at trial; and (4) does
not allow the defendants to be convicted by a
nonunanimous verdict.
United States v. Fisher, 106 F.3d 622, 632 (5th Cir. 1997)
(internal quotations omitted). However, if an indictment is
duplicitous and the defendant is prejudiced, then the conviction
may be subject to reversal. See id.
Halat does not argue that he was prejudiced in any way by the
inclusion of the two acts in Count 16. Additionally, the
circumstances involved in Count 16 satisfy many of the criteria
specified above. The government proved and the district court
actually instructed the jury that the issue was not whether the
particular responses, considered individually and out of context,
were made intentionally with knowledge of falsity, but rather,
whether Halat’s responses were made as part of an endeavor to
impede and block the flow of truthful information, in other words,
a single continuous scheme. The indictment also adequately
notified Halat of the charges against him and does not create a
danger of double jeopardy because it specifically includes the
statements on which the government relied in prosecuting Halat for
obstruction of justice. Regarding the risk of a non-unanimous jury
verdict, the district court did not give the jury an unanimity
instruction concerning Count 16 specifically, and Halat did not
object or request that such an instruction be given; therefore, we
28
review the district court’s decision for plain error. See United
States v. Yamin, 868 F.2d 130, 132 (5th Cir. 1989). Again, Halat
does not argue that he was prejudiced by the district court’s
failure to give a unanimity instruction. For these reasons,
Halat’s arguments fail.
B. Ex Post Facto and Sentencing
Halat also argues that his ten year sentence for obstruction
of justice violates the Ex Post Facto Clause of the Constitution
because at the time he engaged in the prohibited conduct, the
sentence for obstruction of justice was only five years, rather
than ten. We need not address this argument because Halat waived
his right to appeal his sentence in exchange for the government’s
agreement not to appeal a sentence imposed below the guideline
range. See United States v. Dees, 125 F.3d 261, 269 (5th Cir.
1997); United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992)
(“We hold that a defendant may . . . waive his statutory right to
appeal his sentence.”). Halat does not contend that his waiver was
not informed and voluntary. See id.
C. Deliberate Ignorance Instruction
Nix and Halat complain that the district court mistakenly
instructed the jury that the defendants acted “knowingly” if they
“deliberately closed [their] eyes to what otherwise would have been
obvious.” First, they contend that there was no evidence to
support the instruction. This Circuit has established a two-part
29
test to determine when a deliberate ignorance instruction is
warranted. “The evidence must show that: (1) the defendant was
subjectively aware of a high probability of the existence of the
illegal conduct; and (2) the defendant purposely contrived to avoid
learning of the illegal conduct.” United States v. Faulkner, 17
F.3d 745, 766 (5th Cir. 1994). Halat argues that the government
did not show that he knew of the conspiracies, that he was
subjectively aware of a high probability of illegal conduct, or
that he sought to avoid learning of the illegal conduct. Second,
both defendants contend that the court erred in not limiting the
deliberate ignorance instruction because the instruction was
inconsistent with the essential elements of the conspiracy. They
urge us to adopt Second Circuit authority holding that it is an
error to give a deliberate ignorance instruction in relation to the
issue of knowing participation in a conspiracy. United States v.
Fletcher, 928 F.2d 495, 502-503 (2nd Cir. 1991).
The standard of review applied to a defendant’s claim that a
jury instruction was inappropriate is “whether the court’s charge,
as a whole, is a correct statement of the law and whether it
clearly instructs jurors as to the principles of the law applicable
to the factual issues confronting them.” United States v. August,
835 F.2d 76, 77 (5th Cir. 1987). The district court “may not
instruct the jury on a charge that is not supported by the
evidence.” United States v. Ortega, 859 F.2d 327, 330 (5th Cir.
1988). Further, in determining whether the evidence reasonably
supports the charge, the evidence and all reasonable inferences
30
that may be drawn from it are viewed in the light most favorable to
the government. United States v. Lara-Velasquez, 919 F.2d 946, 950
(5th Cir. 1990).
We find that there was sufficient evidence to support a
deliberate ignorance instruction. Halat knew the high probability
of illegal conduct, and he purposely contrived to avoid learning
it. Halat managed the thousands of dollars that Nix’s operation
generated, and he gave Sharpe, Nix’s girlfriend, free run of his
office. Halat also met and spoke with those planning the Sherrys’
murders. Regarding the claim that the instruction was not proper
in a conspiracy we note that this Circuit has consistently approved
a deliberate ignorance instruction in such cases. See, e.g.,
United States v. Scott, 159 F.3d. 916, 924 n.6 (5th Cir. 1998)
(citing six different conspiracy cases in which the court has used
a deliberate ignorance instruction and noting that the court has
consistently held the deliberate ignorance instruction proper when
supported by sufficient evidence).
D. Presentation of False Testimony
Halat and Nix contend that the government knowingly presented
perjured testimony. Specifically, at the 1996 trial, witness
Rhodes repeated his Sharpe I testimony that he was contacted by
Ransom to kill the Sherrys and that Ransom told him he had carried
out the contract killing. Gillich, on the other hand, testified
that he contracted with Holcomb to kill the Sherrys, and that he
did not know Rhodes or Ransom.
31
They also contend that the government violated their due
process rights by changing its theory of the crime after the 1991
trial. In Sharpe I, the government maintained that Rhodes’
testimony alone was sufficient direct evidence of the involvement
of Ransom, Gillich and Halat in the murders. This theory is
inconsistent with the government’s present reliance on Gillich’s
testimony that Holcomb, and not Ransom, was the trigger man. Nix
and Halat argue that this “flip-flopping” of theories violates the
bedrock principles of due process.
As to the government knowingly presenting false testimony,
reversal is required if it is shown that: (1) the testimony was
false; (2) the testimony was material to the verdict; and (3) the
prosecutor knew or believed the testimony to be false. United
States v. Blackburn, 9 F.3d 353, 357 (5th Cir. 1993). They contend
that, because the testimony of Ransom and Gillich was false,
material and the government knew it, their due process rights were
violated. As to the change in government theories, the defendants
contend that due process rights are violated when a prosecutor
presents two different and inconsistent theories of the same crime
in two different trials. Thompson v. Calderon, 120 F.3d 1045, 1058
(9th Cir. 1997) (en banc), rev’d on other grounds, 523 U.S. 538,
118 S.Ct. 1489, 140 L.Ed.2d 728 (1998); Drake v. Kemp, 762 F.2d
1449, 1479 (11th Cir. 1985).
Review of an allegation of the use of false evidence requires
“an independent analysis to determine whether the facts found by
the trial court rise to the level of the applicable legal
32
standard.” United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir.
1998). We find the defendants’ due process claims to be without
merit. First the defendants were well aware of the contradictory
testimony during the trial. United States v. Blackburn, 9 F.3d
893, 894 (5th Cir. 1993) (noting that courts have been reluctant to
find a deprivation of due process when the prosecution has provided
the defense with the necessary information and it can utilize the
information). Furthermore, the trial court on several occasions
instructed the jurors that it was their job to weigh the
credibility of witnesses, and that they could accept or reject
witness’s testimony.
Regarding the defendants’ contention that the government
changed its theory, we view the government’s presentation of the
evidence not as a due process violation but merely as the
presentation of new and significant evidence that justified the
prosecution in question. The very case the defendants cite
recognizes that there is no due process violation when “new
significant evidence comes to light that justifies a subsequent
prosecution. Thompson, 120 F.3d at 1058.
E. Whether Nix was properly sentenced to life imprisonment
Nix contends that he was sentenced to life imprisonment based
on the district court’s finding of facts concerning the Counts 1
and 2 Racketeering Acts. Nix argues that the jury did not make
specific unanimous findings regarding underlying racketeering
activities in convicting him, and that the district court usurped
33
the role of the jury in making these specific findings. Thus, his
right to be found guilty beyond a reasonable doubt by a jury for
the underlying activities was negated. He requests that the court
remand for consideration of his sentence based on the base level
offense for racketeering, which is United States Sentencing
Guideline (“U.S.S.G.”) 2E1.1(a)(2).
This Court reviews a district court’s application of the
Sentencing Guidelines de novo and the district court’s factual
findings for clear error. United States v. Dixon, 132 F.3d 192,
201 (5th Cir. 1997). We find that the district court properly
sentenced Nix. Nix was found guilty of RICO conspiracy Counts 1
and 2 in violation of 18 U.S.C. § 1962. Both RICO Counts included
Racketeering Acts A (conspiracy to commit murder and murder) and B
(murder) in violation of the laws of Mississippi. The applicable
sentencing guideline, U.S.S.G. 2D1.1 provides that the base level
is the greater of 19 or the “offense level applicable to the
underlying racketeering activity.” Here, the underlying activity
involved violations of Mississippi murder statutes, and the
district court properly analogized this offense to the federal
first degree murder offense during sentencing.
CONCLUSION
For the foregoing reasons, we affirm the convictions and
sentences of all appellants.
AFFIRMED.
34