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No ‘Fatal Variance’ in Murder-for-Hire Trial

Deborah Elkins//January 29, 2016

No ‘Fatal Variance’ in Murder-for-Hire Trial

Deborah Elkins//January 29, 2016

A former bank executive and his administrative assistant/girlfriend lose their challenge to their convictions in a murder-for-hire plot targeting the executive’s wife, who he was divorcing; the 4th Circuit rejects appellants’ claims that the trial judge’s jury instructions created a “fatal variance” from the indictment.

Appellants first contend their Fifth Amendment right to indictment by a grand jury was violated when the district court, through its instructions to the jury, constructively amended counts 1 and 3 of the indictment against them. They argue those instructions allowed the jury to convict them under one provision of 18 U.S.C. § 1958(a), which prohibits the use of a “facility” of interstate commerce in connection with a murder for hire, while they were charged only under another, covering “travel” in interstate commerce.

Fatal variance

An impermissible constructive amendment – also referred to as a “fatal variance” – occurs when the government, usually through its presentation of evidence or argument, or the district court, usually through its jury instructions, broadens the possible bases for conviction beyond those presented by the grand jury. The key inquiry is whether a defendant has been tried on charges other than those listed in the indictment.

Here the government charged appellants only under the “travel” prong of § 1958(a), with travel between Kentucky and South Carolina, with the intent that a murder be committed for compensation. In its closing instructions, the district court first read the indictment to the jury. The court went on to make two references to the uncharged “facilities” prong: to “use or cause” another person to “use the mail or any facility” in interstate commerce. No party objected, but appellants raised the constructive amendment claim in post-trial motions, which the court denied.

Under the totality of the circumstances, including the jury instructions, the verdict form provided to the jury, the parties’ arguments and the evidence, we find that the district court’s two references to the “use of facilities” did not constitute a constructive amendment.

The bulk of the jury instructions properly tracked the indictment and omitted any mention of the facilities prong. The parties’ arguments focused solely on the travel prong.

It is true that the evidence at trial involved extensive testimony regarding items that could be considered facilities of interstate commerce – that is, phones and computers. But appellants’ use of cell phones and computers to communicate about the murder plot and to prepare the “hit packet” of information about the intended victim, was presented as substantive evidence that appellants were involved in the murder-for-hire plan, not in a way that tied it to the facilities prong.

We find the jury could not reasonably have concluded it was free to convict appellants under the uncharged facilities prong of the murder-for-hire statute.

Hearsay claim

Appellants also assert that the district court improperly admitted out-of-court statements made by defendant Wendy Moore’s ex-husband, who was hired, along with his prison ex-cellmate, to commit the murder for hire. They also argue the district court erroneously admitted character evidence as to Moore.

The ex-cellmate’s statements, made before the ex-husband committed suicide, concerned a discussion of the murder-for-hire plot targeting someone affiliated with the South Carolina Lottery, as was the target, and a statement that the operation involved decedent’s ex-wife and a banker. Appellants argue the statements were not trustworthy, but the district court did not abuse its discretion in admitting the statements; nor did the statements implicate the Sixth Amendment.

The challenged character evidence involved Moore’s role as a witness in proceedings related to her ex-husband’s prior conviction for arson and the crime of money laundering. Some of the testimony was elicited by appellants themselves, through counsel. The record reflects the district court required the government to correct any misperceptions engendered by its evidence relating to the ex-husband’s past and the money laundering comment.

Convictions affirmed.

U.S. v. Moore (Harris) No. 14-4645, Jan. 20, 2016; USDC at Charleston, S.C. (Gergel) Andrew Mackenzie, James A. Brown for appellants; Rhett DeHart, AUSA, for appellee. VLW 016-2-011, 17 pp.

VLW 016-2-011

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