United States v. Frederick L. Jefferson

149 F.3d 444, 1998 U.S. App. LEXIS 15089, 1998 WL 374771

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 8, 1998
• Docket: 96-5644
• Status: Published

Opinions

ALAN E. NORRIS, J., delivered the opinion of the court, in which BATCHELDER, J., joined. DAUGHTREY, J. (pp. 446-49), delivered a separate opinion concurring in part and dissenting in part.

OPINION

ALAN E. NORRIS, Circuit Judge.

This appeal concerns convictions arising from a robbery and murder in Milan, Tennessee, on July 30,1992. Defendant Frederick L. Jefferson appeals from convictions for conspiring to unlawfully interfere with interstate commerce by force in violation of 18 U.S.C. § 1951, interfering with interstate commerce by force in violation of 18 U.S.C. § 1951, use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c), and witness tampering in violation of 18 U.S.C. § 1512(a)(1)(C). Because the only issue on appeal that has not been directly confronted by this circuit concerns whether sufficient evidence existed to support defendant’s witness tampering conviction, we discuss it below. All other issues raised on appeal are addressed in an unpublished Appendix to this opinion.

I.

This case arises from a robbery that resulted in the murder of Elmus Simms in Milan, Tennessee. On July 30, 1992, defendant accompanied Brian Williams and Yulan-da Marshall on their visit to Abbott’s Jewelry Store in Memphis, Tennessee. While a salesperson, Barbara Shelley, assisted Marshall with an engraving order, Simms, a jewelry salesman for Everwed Company, was showing a line of jewelry samples to the store owner. The trio of Marshall, Williams, and defendant left the store at the same time as Simms.

Evidence at trial established that the trio entered their car and followed Simms’ vehicle. At some point during the chase, defendant displayed his previously concealed handgun to Marshall and Williams. As the ears entered Milan, Tennessee, the trio pulled their car next to Simms’ automobile and defendant brandished his gun at Simms, who accelerated quickly, lost control of his ear, and drove it into a ditch. Defendant left his vehicle and ran towards Simms’ car. Although defendant acknowledges that as he approached Simms he recognized that Simms was severely injured and unconscious, he nevertheless shot him at least three times. Evidence at trial indicated that defendant’s third shot hit Simms in the back while Simms was slumped over on his side with his head in the passenger side of the vehicle. Defendant then took the ear keys and retrieved the jewelry samples from the trunk. The samples were worth over $75,000.

After defendant’s acquittal on murder charges in state court, he was indicted in federal court for: (1) conspiring to interfere with interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951; (2) interfering with interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951; (3) use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); (4) murder to prevent communication to law enforcement authorities eoncern-ing the robbery in violation of 18 U.S.C. § 1512(a)(1)(C); and (5) transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312.

After a three-day trial, a jury convicted defendant on all five counts, and the district court sentenced him to life plus sixty months’ imprisonment. On appeal, defendant contests his convictions on the first four counts.

II.

Defendant challenges his conviction for witness tampering on the ground of insufficient evidence. Specifically, defendant asks us to reverse this conviction because (1) the evidence was insufficient to prove that he possessed the requisite intent and (2) his conduct does not fit within the statutory language of this offense. A defendant raising such a challenge bears a heavy burden, as we view the evidence in the light most favorable to the prosecution. United States v. Martin, 897 F.2d 1368, 1373 (6th Cir.1990) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We defer to the jury’s resolution of witness credibility- and, where there is conflicting testimony, to its selection between competing inferences. United States v. Gibson, 675 F.2d 825, 829 (6th Cir.1982). The evidence need not be inconsistent with every conclusion save that of guilt, so long as it establishes a case from which a jury could find the defendant guilty beyond a reasonable doubt. Martin, 897 F.2d at 1373.

Defendant was convicted of violating 18 U.S.C. § 1512(a)(1)(C), which makes it a crime to kül a person “with intent to ... prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense____” In determining the scope of the statute, we look first to its language. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980).¹ Under the circumstances of this case, in order to obtain a conviction pursuant to § 1512(a)(1)(C), the government needed to prove that when defendant killed Simms he was motivated by a desire to prevent the communication between Simms and law enforcement authorities of information concerning defendant’s involvement in the robbery.

Defendant contends that the evidence supports an inference that he shot Simms to prevent -his interfering with defendant’s scheme to seize the car keys in order that he might remove the samples from the automobile’s trunk, and that this inference is at least equal in strength to any inference that he was motivated to shoot Simms in order that he might not implicate defendant in the commission of a crime. Defendant maintains that the witness tampering statute is a specific intent crime, and, as such, requires the government to prove that he killed Simms with the intent to prevent Simms from disclosing his identity to law enforcement. Although we agree with defendant’s characterization of the government’s burden of proof, it appears to us that, when the evidence is considered in the light most favorable to the prosecution, it more persuasively supports the government’s theory of guilt than it supports defendant’s theory of innocence.² Accordingly, the evidence was sufficient to support a reasonable jury in concluding that defendant was guilty of this charge.

The government adduced substantial evidence that defendant murdered Simms in violation of the statute. As defendant concedes, Simms was badly injured, indeed unconscious, when he approached Simms’ vehicle. Defendant, nevertheless, shot his victim numerous times in the back with his .44 caliber pistol. A reasonable fact-finder could have rejected defendant’s contention that he killed his victim in order to ease the burden of his planned robbery in light of his acknowledgment that he knew that Simms was unconscious prior to shooting him. Additionally, contrary to the dissent’s assumption, the jury need not find that defendant’s sole motivation in killing Simms was to prevent him from communicating to law enforcement authorities. The dissent’s and defendant’s contention that these two motivations — killing Simms in violation of § 1512(a)(1)(c) and to aid his robbery — are mutually exclusive is meritless.

Defendant also suggests that the witness tampering conviction should be reversed because the federal crime which Simms would have communicated to federal law enforcement authorities, robbery, had not been committed prior to Simms’ murder. The argument is meritless since the statute’s use of the words “commission or possible commission” clearly precludes the temporal restriction urged by defendant. Nothing in the statute requires that “possible commission” be read to mean “a crime that already may have been committed,” as opposed to “a crime that may be about to be committed.”

III.

For the reasons stated herein and in the unpublished appendix to this opinion, we affirm defendant’s convictions.

1 . The quote, "the jury has spoken,” has seemingly diverted the dissent’s attention from the fact that Congress has spoken. Only when the language of a statute is not clear should we examine congressional intent or the statute’s legislative history. GTE Sylvania, Inc., 447 U.S. at 108, 100 S.Ct. 2051.

2 . Although the dissent recognizes and purports to review defendant’s sufficiency of the evidence challenge under our deferential standard, this is not borne out in its analysis, e.g., the dissent’s "stretch" in finding that shooting a victim three times — once in the back — is inconsistent with an intent to kill. Certainly a "reasonable juror” could find that shooting a victim at least three times, once after recognizing that the victim was unconscious, is indicative of a specific intent to silence the witness.