OpenJurist

919 F2d 139 United States v. McCoy

919 F.2d 139

31 Fed. R. Evid. Serv. 1128

UNITED STATES of America, Plaintiff-Appellee,
v.
John P. MCCOY, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Kennis MCCOY, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Leroy NANCE, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Vondia CLARY, Defendant-Appellant.

Nos. 89-5659, 89-5682, 89-5684 and 89-5685.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 2, 1990.
Decided Dec. 4, 1990.
As Amended Dec. 20, 1990.

Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeals from the United States District Court for the Southern District of West Virginia, at Huntington. Charles H. Haden II, Chief District Judge. (CR-89-101)

Peter H. Strott, Hunton & Williams, argued, Richmond, Va., for appellant Nance; Matthew J. Calvert, Hunton & Williams, Richmond, Va., on brief.

John Bertram Mann, Levit & Mann, argued, Richmond, Va., for appellant John McCoy.

Elizabeth Dashiell Scher, Morchower, Luxton & Whaley, Richmond, Va., argued for appellant Clary.

Sanford Benjamin Bryant, Assistant United States Attorney, Huntington, W.Va., argued for appellee; Michael W. Carey, United States Attorney, Paul A. Billups, Assistant United States Attorney, Huntington, W.Va., on brief.

Karen L. Ely-Pierce, Gerald T. Zerkin, Gerald T. Zerkin & Associates, Richmond, Va., on brief for appellant Kennis McCoy.

S.D.W.Va.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Before DONALD RUSSELL and MURNAGHAN, Circuit Judges, and CACHERIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

PER CURIAM:

1

The appeal before us centers on claims that insufficient evidence supported convictions relating to conspiracies among several incarcerated prisoners and their confederates. Two conspiracies allegedly existed: first, a scheme to kill federal witnesses involving prisoners Robert Nance and John P. McCoy, and their nonincarcerated acquaintances, Vondia Clary and Kennis McCoy;1 second, a scheme to escape prison involving Nance, Clary, and McCoy. Both plans depended on the services of William E. Cremeans. Cremeans, a fellow prisoner with McCoy and Nance, allegedly agreed to have his bail paid and then, in return, kill various witnesses whom McCoy and Nance wanted liquidated and help them escape from jail. After Cremeans advised the government of the incipient plan, the FBI arranged body wires and phone tappings of Cremeans' activities. The FBI even went so far as to pretend that one witness, Carolyn Runyon Smith, the ex-wife of prisoner Harold "Boonie" Runyon, actually had been killed. Runyon, who pleaded to other charges and served as a government informant, was not indicted, although he admitted involvement in both plans. At a joint trial, a jury found the three defendants other than Kennis McCoy guilty on all counts of the indictment relating to conspiracies to kill and to attempt to kill federal witnesses and to escape from detention. Kennis McCoy was found guilty of the conspiracy charge for attempt to kill but not of the conspiracy to attempt to escape.

2

After a recitation of the alleged facts, we first address the conspiracy convictions of Nance, Clary, and McCoy. Second, we discuss the conspiracy conviction of Kennis McCoy. In brief, we conclude that sufficient evidence supported the convictions of the three defendants and that the district court judge did not abuse his discretion, either in his denial of a motion for mistrial or in his action in taking judicial notice. However, we conclude that insufficient evidence supported the conviction of Kennis McCoy and, thus, we reverse his convictions and remand for a new trial.

THE FACTS

A. In Jail

3

In October 1988 at the Cabell County Jail in Huntington, West Virginia, according to William C. Cremeans, who had been convicted of murder, grand larceny, and several misdemeanors, another prisoner approached him. The prisoner, Nance, was awaiting trial on cocaine distribution charges. Nance suggested that he would try to meet Cremeans' bond, and provide him with cocaine and a hiding place in Florida, if Cremeans would kill Tony Phillips and Beverly Adkins Evans, two witnesses to Nance's illicit activities. Nance may have shown Cremeans a picture of Evans. Cremeans reported the conversation to federal authorities. Cremeans was released in January and did nothing further. At the later trial, Cremeans testified that no conspiracy existed in the fall of 1988.

4

But in April 1989, Cremeans returned to the jail on breaking and entering charges. Once again, Nance allegedly discussed with Cremeans the possibility of killing Evans. Cremeans remained in jail and, in March, Nance allegedly introduced him to McCoy. McCoy, along with Runyon, was awaiting trial on charges of murder and armed bank robbery. At the trial on the conspiracy charges, there was testimony that McCoy allegedly told Cremeans about two witnesses who could damage McCoy in court--Carolyn Runyon Smith and Jimmy Tincher. Nance supposedly explained to Cremeans that McCoy and Runyon had acquired almost $300,000 in a bank robbery and that McCoy made counterfeit money. McCoy purportedly told Cremeans that he had talked to Runyon and Runyon was willing to pay Cremeans $20,000 to kill Carolyn Runyon Smith. McCoy said he would pay an additional $100,000 counterfeit. Runyon later testified that McCoy was going to give Cremeans $200,000 counterfeit. At trial, Cremeans testified that he repeatedly met with Runyon and McCoy and that they planned to get him out of jail. Runyon would post bond, for McCoy had no money. Clary, Nance's codefendant and the mother of his daughter, was to give Cremeans an AR-15 semi-automatic rifle. Cremeans claimed he discussed with Nance the AR-15 and its use in the projected murder scheme to kill witnesses for McCoy and Runyon.

5

According to Runyon, in the discussions among him, McCoy and Cremeans, an escape plan also developed. Cremeans testified that Runyon had two (maybe three) cars at different airports that were to be used for the escape by Nance, Runyon, and McCoy. Handguns were to be provided for the escape by Clary.

6

Apparently, sometime in early April, Cremeans went to or ran into the federal authorities at a grand jury session in Kanawha County, West Virginia. At the April meeting, he agreed to be an informant.

B. Cremeans' Release

7

On April 25, 1989, Cremeans was released. Cremeans claimed that money had been brought and left on a car sun visor following Runyon's instructions. Clary picked it up and posted bond. Clary assertedly gave Cremeans $338 for expenses. Before Cremeans had left the jail, Runyon gave him the phone number of McCoy's mother. Cremeans was instructed to call the number and tell McCoy's mother to be sure that McCoy's son, Kennis McCoy, would meet him and drive him on a trip.

8

From April 25 to May 1, Cremeans contacted Nance, McCoy, and Clary. The government recorded the phone conversations and wired Cremeans with a transmitter and Nagra body recorder. The conversations, recorded on tape and played for the jury, did not provide a "smoking gun" (no one said, "let's all go murder these federal witnesses");2 however, at trial and on appeal the government has proposed the following scenario. (1) April 25. McCoy told Cremeans that Kennis McCoy would meet him at the Rax Restaurant. Cremeans met Kennis McCoy. Kennis McCoy showed Cremeans a photograph of John Robinson (possibly from a transcript) and drove him on a long, meandering interstate trip. Kennis McCoy explained to Cremeans where Robinson lived, worked, ate, and kept his car; where Carolyn Runyon Smith lived and the club she frequented; where Tincher lived and the places he frequented; and where Linda Curry worked. Kennis McCoy gave elaborate directions to Cremeans. He felt he was being followed and during the trip pulled off the road (allegedly twice). (2) April 26. Clary brought the AR-15 and ammunition to Cremeans. Cremeans and Runyon discussed when to murder Carolyn Runyon Smith. (3) April 27. Clary and Cremeans discussed (a) money, (b) Kennis McCoy, (c) Carolyn Runyon Smith's diamond ring, and (d) handguns for the escape. In a three-way conversation, Nance, Clary, and Cremeans also talked about the ring. (4) April 28. There were continued discussions; Runyon agreed with Cremeans that he and McCoy also wanted Linda Curry killed. Clary told Cremeans she had not located "Bev" [Evans]. Cremeans said he might "move on that Kentucky lady tonight." (5) April 29. In various telephone calls, Runyon, Cremeans, Nance, and Clary discussed money, cars, and killing Carolyn Runyon Smith that night. Nance suggested that Cremeans should not act on Runyon's and McCoy's requests until Cremeans got the money. That evening, with the assistance of the government, Carolyn Runyon Smith "disappeared" and gave her rings to the FBI. (6) April 30. Cremeans told Nance and Clary that he had killed Carolyn Runyon Smith and had the rings. The three of them discussed the money. Runyon and Cremeans talked of going "bowling." (Robinson worked in a bowling alley.) That afternoon, Cremeans showed Runyon the rings through the prison fence. McCoy and Runyon argued with Cremeans over money. Nance, Clary, and Cremeans discussed the rings, "handpieces" (guns), and the escape. (7) May 1. Further discussions took place among Nance, Clary, Runyon, and Cremeans. (8) May 2. The government arrested the three defendants and, apparently, Kennis McCoy and Runyon.

C. The Trial

9

The trial focused on the tapes and Cremeans' testimony. The four defendants were represented by separate counsel. All four of the defendants (Nance, Clary, McCoy, and Kennis McCoy) testified. Kennis McCoy claimed that he drove Cremeans at his father's direction and had no knowledge of a plan to attempt to kill federal witnesses. He denied harboring his father prior to McCoy's March 1989 arrest. The government introduced the testimony of Johnny Millirones, who stated that McCoy had told him he would "see that Jimmy Tincher was knocked off," and that Kennis McCoy was in the room at the time. McCoy contended that the bail for Cremeans had been arranged in return for tin siding for Kennis McCoy's garage and that the trip had been solely for the purpose of locating witnesses on the pretext of enabling Cremeans to carry out an investigation. Clary claimed that her connection with the AR-15 terminated when she sold it to Cremeans. Nance asserted a belief courts have found evidence sufficient to support conspiracy convictions where two defendants had detailed conversations about plans for murdering the victim even though neither defendant intended to kill the victim himself, see Miller v. Stagner, 757 F.2d 988 (9th Cir.1985), amended by, 768 F.2d 1090, cert. denied and dismissed, 475 U.S. 1048 (1986); coconspirators discussed killing the victim with the defendant, the defendant urged coconspirators to kill the victim, and the defendant delivered money knowing it was to pay the killer, see United States v. Chagra, 807 F.2d 398 (5th Cir.1986), cert. denied, 484 U.S. 832 (1987); the defendant served as a conduit for information between a coconspirator and the hitmen and knew of the contents of relayed messages, United States v. Chaverra-Cardona, 879 F.2d 1551 (7th Cir.1989). Finally, the evidence was sufficient where the defendants discussed, in code, a weapons purchase and a multi-goal escape plan with a prison inmate. See United States v. Sababu, 891 F.2d 1308 (7th Cir.1989).

10

Yet courts have found evidence insufficient to support conspiracy convictions where a doctor, who allegedly had had a prior conversation with another person about selling drugs from a sealed cabinet, recommended a physician's assistant for a job without informing the clinic which employed him of the assistant's past drug offenses and the assistant then used the job to issue false prescriptions to distribute drugs, see United States v. Jones, 808 F.2d 754, 757 (10th Cir.1987) ("[W]e cannot allow a conviction to be obtained by 'piling inference upon inference.' " (quoting United States v. Butler, 494 F.2d 1246, 1252 (10th Cir.1974))); the defendant was the long-time associate of an alleged coconspirator, the defendant planned to be a character witness at the coconspirator's trial, the defendant rented the room where the victim's body was found, and explanations advanced to explain the rental were inconsistent, see United States v. Coleman, 811 F.2d 804, 808 (3d Cir.1987), appeal after remand, 862 F.2d 455 (3d Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2074 (1989) ("the government never raised more than a suggestion.... [C]onspiracy cannot be proven '... by piling inference upon inference, thus fashioning ... a dragnet to draw in all substantive crimes.' " (quoting Anderson v. United States, 417 U.S. 211, 224 (1974))); the defendant lent money to an alleged coconspirator, told the alleged coconspirator, "You don't have to explain it" (when the alleged coconspirator began to give reasons why he needed to get something from New York), and may have been aware of the alleged coconspirator's involvement in possession and distribution of cocaine conspiracy, see United States v. Young, 822 F.2d 1234 (2d Cir.1987); defendant had a cellular phone in his car, a large amount of cash on his person, and may have driven an unidentified person to the drug rendezvous who then drove off with the loaded car. See United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir.1988). We note in particular, the Fifth Circuit's comment:

11

Although no other explanations were offered by the defense, there was no burden of proof on Lazarin [the defendant]. It is possible [court speculates on various scenarios].... "Too many innocent scenarios jibe with the sparse record facts." United States v. Gonzalez, 703 F.2d 807, 808 (5th Cir.1983). We give the jury all deference in questions in credibility of testimony, but this is not a case where competing explanations are being offered. The question is simply whether the four undisputed circumstantial facts are sufficient to convict Lazarin of conspiracy beyond a reasonable doubt. It is not enough that the defendant merely associated with someone who was knowingly participating in a conspiracy nor is it enough that the evidence places the defendant in "a climate of activity that reeks of something foul." United States v. Galvan, 693 F.2d 417, 419 (5th Cir.1982).

12

Espinoza-Seanez, 862 F.2d at 538-39.

13

Applying those cases here, we have concluded that suspicion and inference, indeed "a climate of activity that reeks of something foul," may properly attach to Kennis McCoy. But there has not been proof beyond a reasonable doubt of agreement by him in a conspiracy.

D. Conspiracy

14

To prove a conspiracy, the government must show

15

an agreement among the defendants to do something which the law prohibits; knowing and willing participation by the defendants in the agreement; and an overt act by the defendants in furtherance of the purpose of the agreement.

16

United States v. Meredith, 824 F.2d 1418 (4th Cir.1987), cert. denied, 484 U.S. 969 (1987), 485 U.S. 991 (1988). Tacit agreement suffices, see United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989), and each conspirator need not even know the other conspirators. See Auerbach, 913 F.2d at 415. In fact, the government need not prove direct conspiring between defendants. See United States v. Sanchez-Solis, 882 F.2d 693, 696 (2d Cir.1989). However, "[o]ne who acts as a government agent and enters into a purported conspiracy in the secret role of an informer cannot be a coconspirator." United States v. Chase, 372 F.2d 453, 459 (4th Cir.), cert. denied, 387 U.S. 913 (1967); see United States v. Hayes, 775 F.2d 1279 (4th Cir.1979). "Knowledge and participation ... may be proved by circumstantial evidence," Meredith, 824 F.2d at 1428; see also United States v. Glasser, 315 U.S. 60, 80 (1941); United States v. Barnes, 747 F.2d 246, 249 (4th Cir.1984) ("common purpose and plan may be inferred from all the circumstances"). Nonetheless, "to convict the government must establish the defendant's knowledge of and participation in the conspiracy." United States v. Manbeck, 744 F.2d 360, 386 (4th Cir.1984), cert. denied, 469 U.S. 1217 (1985). Although the defendant need not know every detail or participate in every stage of the conspiracy, he or she must know "of the conspiratorial goal, and ... voluntarily participate[ ] in helping to accomplish that goal." United States v. Jones, 913 F.2d 1552, 1557 (11th Cir.1990). As the Fourth Circuit has stated, the defendant must have "participated in the conspiracy with knowledge of the essential nature of the plan." Barnes, 747 F.2d at 246. Even if the defendant has performed but a single act, he or she can be found a knowing participant in the conspiracy; yet, " 'the qualitative nature of the act viewed in the context of the entire conspiracy ... in a particular case' [must] support[] beyond a reasonable doubt the inference 'that the individual is involved in a conspiracy.' " United States v. Zabare, 871 F.2d 282, 287 (2d Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 161 (1989) (quoting United States v. Murray, 618 F.2d 892, 903 (2d Cir.1980)). " '[M]ere knowledge, acquiescence or approval without cooperation or agreement to cooperate is not enough to constitute one part of a conspiracy.' " Manbeck, 744 F.2d at 390 (quoting United States v. Mendez, 496 F.2d 128, 130 (5th Cir.1974)). Thus, in the end, the government must establish that, beyond a reasonable doubt, the defendant agreed to, knew of, and participated to effectuate, the end of the conspiracy.

17

In addition, a single conspiracy exists "where there is 'one overall agreement,' " United States v. Leavis, 853 F.2d 215, 218 (4th Cir.1988) (quoting United States v. Bloch, 696 F.2d 1213, 1215 (9th Cir.1982)), and the distinction between single versus multiple conspiracies depends on "the overlap of key actors, methods, and goals." Id.; see United States v. Berlin, 707 F.Supp. 832, 836-37 (E.D.Va.1989); see also United States v. Cole, 755 F.2d 748, 764 (11th Cir.1985) (examining common goal, nature of criminal scheme, and overlap of participants). Merely performing different functions does not establish a multiple conspiracy, see Cole, 755 F.2d at 764; indeed, "a finding of a master conspiracy with sub-schemes does not constitute a finding of multiple, unrelated conspiracies." United States v. Smith, 789 F.2d 196, 200 (3d Cir.1986), cert. denied, 479 U.S. 1031 (1987); see United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir.1987) (holding that a "single conspiracy may include subgroups or subagreements"). Even if evidence shows multiple conspiracies rather than a single one, reversal should occur only if the variance affects the defendant's "substantial rights": rights to be sufficiently informed of the charges to prepare an effective defense; a right not to face another prosecution for the same offense; and the right to avoid prejudicial "spillover"--guilt by association. Drougas, 748 F.2d at 17-18.

18

1. Nance, Clary, and McCoy: Conspiracy to Kill and Attempt to Kill Federal Witnesses

19

Overall, the defense has attempted to argue that, with respect to each defendant, the conspiracy to kill federal witnesses did not exist because the Nance-Clary side did not want to kill the McCoy-Runyon side's witnesses and vice-versa. But conspiracy extends to even such "sophisticated" conspiracies. Like any single group joined with other groups to advance an overall goal, the defendants cannot deny participation in the goal merely because of a greater interest in one specific aspect of the goal, when knowing that agreement to effectuate the entire goal was needed to effectuate achievement of their own particular desire. See Patterson, 819 F.2d at 1502.

20

a. Nance

21

Nance has claimed that there was insufficient evidence to prove that he conspired to kill the four witnesses. He argues that, even if he knew that a conspiracy existed to kill the witnesses McCoy wished liquidated, he never agreed to participate in it. His explanation has drawn on Runyon's testimony that "at the time we was doing everything, I didn't know the guy, didn't know he was involved in it or nothing." Additionally, Nance has claimed that the evidence never established a decision by him to kill Evans. The government has countered that Nance's conveyance of information within the jail, the encouragement of Clary, and bail for Cremeans have served to prove his participation.

22

Sufficient evidence existed to support the conviction of Nance. His continued awareness that the phones were "dangerous" resulted in few outright admissions. Nevertheless, the record contains substantial evidence of his participation. Cremeans testified that Nance introduced him to McCoy. Runyon testified that, in the jail yard, McCoy pointed Cremeans out to him when Cremeans was walking with Nance. Even if Runyon actually did not know Nance was involved, coconspirators need not know of each other's existence. Auerbach, 913 F.2d at 415. In any case, Nance was involved with McCoy, and McCoy was involved with Runyon. In addition, Cremeans testified that, in March 1989, Nance still wanted Evans killed. The record suggests that, although Nance never found Evans, he did not depart from his resolution to kill her.3 With respect to the McCoy/Runyon witnesses, Nance had more than mere knowledge. His eventual concern about Cremeans' "achievement" of the killing of Carolyn Runyon Smith before receiving the money in return could have been construed by the jury as indicating motivation evidenced by a belief that his chances of escape would increase if Cremeans first performed the escape part of the conspiracy and then he and Cremeans were to kill Carolyn Runyon Smith.4 Moreover, he actively sought to advance Cremeans' mission. At Nance's request, his codefendant, Clary, brought the AR-15 to Cremeans. On tape, Clary stated that Nance said "you tell Billy [Cremeans] if he goes ahead and does it before I get out, you tell Billy to get the rings...." Nance continued to encourage Cremeans and mediate between Cremeans and McCoy. Although alone Nance might not have sought personally to kill the three McCoy witnesses, Nance never withdrew from his initial desire to have Evans killed; he knew about the part involving McCoy's witnesses, and encouraged, cautioned, and negotiated with respect to their eventual demises; and he fostered and supported Clary's involvement in the conspiracy. Nance knew that the conspiracy's goal was the death of federal witnesses and he participated in activities designed to accomplish it.

23

b. Clary

24

Clary claimed that she never knew of a conspiracy to kill government witnesses and never intended to become a part of it. She has made the argument that she was not involved in the plan to kill the Runyon/McCoy witnesses and never demonstrated any desire to have Evans killed. She relies on Cremeans' testimony that he did not know how much she knew. The government response was that Clary knew about and participated in the conspiracy: she obtained money from Runyon's people; she posted bail for Cremeans; she gave Cremeans the AR-15; she attempted to discover the location of Evans; and she discussed with Cremeans his plan to kill witnesses.

25

Sufficient evidence exists to support Clary's conviction. Clary posted bail for Cremeans. She brought Cremeans the AR-15 with ammunition and explained how it worked. When Cremeans, somewhat leadingly, asked, "Do you know how hard it is to kill four people in a God damn four mile or maybe six mile radius? ...," she replied, "Like Robert said--". When Cremeans later stated, "And I'm going to move on that Kentucky lady tonight if possible," she told him, "All right you be--" and later repeated, "Be careful." She tried to find Evans' location.5 Throughout the week, she repeatedly met with and talked to Cremeans and Nance.

26

Clary's personal feelings toward killing the witnesses are irrelevant when her actions supported and furthered that objective. Similarly, the absence of a statement by Clary that she agreed to participate in a conspiracy to kill federal witnesses does not nullify the conviction. Her knowing cooperation in the conspiracy supports the conviction. She knew her action supported and advanced a plan to kill federal witnesses. One who knows a likely consequence of one's actions intends that consequence whether one desires it to happen or not. Cf. United States v. Jewell, 532 F.2d 697, 704 (9th Cir.), cert. denied, 426 U.S. 951 (1976) (holding, in the context of a criminal statute, that " 'knowingly" includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment").

C. McCoy

27

The argument of McCoy has been that he did not conspire with Cremeans and Runyon. He has steadfastly maintained that he never told his son to kill anyone or to obtain counterfeit money. He has suggested that, at most, he was only boasting because he was never serious about participating with Runyon and Nance. In sum, McCoy has argued that the government was unable to point to anything on tape that would prove he had been part of the conspiracy. The government in reply has pointed to the fact that Cremeans testified of his numerous conversations with McCoy and Runyon involving the promises of counterfeit and legal money in exchange for killing the witnesses. McCoy admitted that he had arranged for his son, Kennis McCoy, to drive Cremeans.6 Runyon testified that McCoy and he agreed to kill Carolyn Runyon Smith and others and that McCoy believed Cremeans had killed Carolyn Runyon Smith. McCoy's statements that Cremeans just could "go ahead and work with Boonie [Runyon]," do not exculpate McCoy; rather, they only go to show his dilatoriness in paying.

28

Once again, we conclude that sufficient evidence existed to uphold McCoy's conviction. In addition to Cremeans' and Runyon's testimony inculpating McCoy, his own actions demonstrate his knowledge and participation. He arranged the Cremeans' tour of the witnesses, a tour which revealed little interest in the tin siding, the alleged purpose of the trip. After arranging the logistics for the meeting between Cremeans and Kennis McCoy, McCoy assured Cremeans that the money would be no problem. Moreover, the excerpts cited by McCoy's counsel as exculpatory, in fact, support the conviction. For example, there was reference to Cremeans' testimony that McCoy and Runyon were not in agreement. The quotation, however, occurred during Cremeans' explanation that McCoy wanted quite a few others killed:

29

Mr. Runyon's only victim--the only thing he really cared about killing was Carolyn Runyon [Smith], his wife. John McCoy had a list like a shopping list. He wanted a Maynard ..., Paul Shortridge, Sammy Copley, a person by the name of Carl Lockhart, John Robinson, Jimmy Tincher, Linda Curry and a lady that, I think, ran a junk yard....

30

Runyon and McCoy were in agreement about killing, at the least, Carolyn Runyon Smith or her and Robinson. Cremeans' subsequent statement that McCoy "was just getting carried away," refers to the large number of people McCoy wanted to kill. Furthermore, McCoy's retort to Cremeans, "Well, if you feel that way about it, then why don't you just let it like it is and you go ahead and work with Boonie [Runyon]," took place after McCoy believed Carolyn Runyon Smith to have been killed. It indicates McCoy's unwillingness to pay Cremeans and shows neither lack of prior involvement in the conspiracy nor withdrawal from it. Cf. United States v. Nersesian, 824 F.2d 1294, 1303 (2d Cir.), cert. denied, 484 U.S. 957, 958 (1987), and Annabi v. United States, 484 U.S. 1061 (1988) (holding that conspirators' "problems or difficulties in dealing with one another ... does not necessarily negate the existence of a single conspiracy"). Evidence in the record was enough to demonstrate that McCoy knew of and participated in the conspiracy to kill federal witnesses.

31

d. No Variance

32

We find that, with respect to the three defendants, no variance exists between the indictment for a single conspiracy and the proof at trial. The record reveals substantial evidence that the three participated in activities designed to advance the overall agreement to kill federal witnesses followed by an escape through arranging money, tours, and guns, and mediating with Cremeans. Even if each coconspirator did not know all the specific details or the precise relationship of involved members, such showings are not necessary to prove conspiracy. The key actors, methods, and goals completely overlapped. See Leavis, 853 F.2d at 218.

33

2. Nance, Clary, and McCoy: Conspiracy to Escape

34

There was also sufficient evidence to support the convictions of Nance, Clary, and McCoy for conspiracy to escape. Cremeans testified that, prior to his release from jail, McCoy discussed escape plans with Runyon, Nance, and Cremeans. In addition, Runyon testified that he, McCoy, and Cremeans discussed the escape. On the tapes, Nance and Clary discussed with Cremeans the existence of three cars. Nance has claimed that he only meant to sell the cars. There was evidence, however, sufficient to support the government's interpretation that the cars were meant for the escape. For example, Nance told Cremeans, "And you be sure and get all three locations and get those keys and get that lined up." Nance, Clary, and Cremeans also discussed the handguns that Clary was to obtain. In addition, after Carolyn Runyon Smith had been "killed," Nance repeatedly suggested to Cremeans that he would like to do it "on Friday."7 And Nance suggested that, once Cremeans broke him out of jail, he would "assist" in killing the witnesses: "And then in turn it will just be three or four days because me and you will take what [sic] we was talking about." Although Nance and Clary appeared more concerned about the escape than McCoy, sufficient evidence supported all the convictions.

C. Kennis McCoy: Conspiracy to Kill

35

Kennis McCoy was indicted on the conspiracy-to-kill-federal-witnesses count but not the escape count. At the outset we are met with Kennis McCoy's claim that "[t]here is a complete lack of credible evidence showing that ... [he] was involved in a conspiracy to kill witnesses." We agree that, while the evidence was sufficient to support conviction of the other three defendants, it did not rise, in Kennis McCoy's case, above an unverified suspicion or inference. The government does not show sufficient evidence by which a reasonable jury could conclude that Kennis McCoy had been a member of the conspiracy.

36

The government's case against Kennis McCoy rests on two pieces of evidence: (1) his drive with Cremeans, in which he bypassed an exit because he believed he was being followed; and (2) the testimony of Johnny Ray Millirones who stated that, in the McCoy house in March 1989, Millirones had discussed with McCoy, in the presence of Kennis McCoy, McCoy's desire to have Tincher killed. To characterize the stopping of the car as suspicious, even if it was in fact suspicious, does not indicate disposition or agreement to kill. To establish simply whereabouts without more does not establish agreement, or even knowledge of an intent, to kill the persons located. In the same vein, to harbor a father when he is a felon, even to hear that he wants the final solution applied to someone, does not provide sufficient evidence of agreement or intention to join the father in his errant ways. Hence, there was simply not enough to support the conclusion that, beyond a reasonable doubt, Kennis McCoy knew of and voluntarily participated in the conspiracy.

37

The government has contended that the "words not spoken" by Kennis McCoy indicate his knowledge of the conspiracy. The government's argument is that if Kennis McCoy really had believed Cremeans was a private investigator, he would have asked him questions about the investigating profession. But what compelling reason was there to do so while obeying a father's bidding? Kennis McCoy's silence should not, in the circumstances, be enough to prove his guilt. The argument that words not spoken prove those thoughts had during silence applies, if at all, in rare circumstances, not present here, where something has occurred to require speech or other communication, or else be misunderstood. It may be questionable conduct to have driven Cremeans at all, but it seems quite understandable that a young man asked by his father to drive an ex-convict around at night would not care to inquire about the convict's chosen profession. Moreover, during the drive with Cremeans, Kennis McCoy never once indicated any belief that Cremeans would be killing someone. In fact, Kennis McCoy told Cremeans that he merely was following his father's instructions. When Cremeans first met Kennis McCoy, Cremeans asked, "Has he told you everything you got to show me?" Kennis McCoy replied, "(unintelligible) show you where some people lives at." Later, a similar exchange occurred:

38

Cremeans: "See, I don't know how to talk to you, I don't know how much John has said."

39

Kennis McCoy: "He just told me to show you where these people was at."

40

Cremeans: "That's all he told you?"

41

Kennis McCoy: "That's all he told me. I just grew up, you know, doing what he tells me to do."

42

Cremeans and Runyon also testified that Kennis McCoy apparently just did what his father told him to do.

43

In addition, the government claimed that the length and interstate nature of the trip was dispositive. Yet a long interstate drive to prove agreement in or even knowledge of a conspiracy or conspiracies to kill federal witnesses seems rather farfetched. The government never produced any evidence that Kennis McCoy did not simply believe that he was showing Cremeans the locations so that Cremeans could do some "investigating" for his father.

44

The government also has pointed to Kennis McCoy's fear of being followed while driving. The tape records one instance of such concern; Cremeans claimed another one occurred. Upon entering the truck, Cremeans told Kennis McCoy, "kind of try to stay around the speed limit. I don't want to get stopped, you know." Subsequently Kennis McCoy said, "I had a car back there following me just now, followed me ever since I left back there, so I passed my exit up.... Spooked me there a little bit." Cremeans responded, "Be careful, son, please. If you think there is somebody a following you, pull over and park in this lot for a little bit." Later Cremeans added "I don't need no God damn heat." Fears of people following us reasonably occur even to the most law-abiding citizen, and here we deal with a young man whose father has been in jail and whose companion on the journey was an ex-convict. Furthermore, any argument that Kennis McCoy's fear of being followed sufficed to prove his awareness of and participation in the illegal conspiracy to kill witnesses is belied by his stop to get cigarettes for Cremeans:

45

Cremeans: "You care to be seen here at this Super America?"

46

Kennis McCoy: "Huh, a lot of the people knows me here."

47

Cremeans: "Whoo, don't do it then, huh uh."

48

Thus, no evidence that the government presented amounted to more than mere speculation and a "piling [of] inference upon inference." Jones, 808 F.2d at 757.

49

The government, however, sought to add one more inference to its little pile. Kennis McCoy testified that he had not harbored his father prior to the March arrest. After his testimony, the government introduced Johnny Ray Millirones.8 Millirones was a paid government informant. He collected $1300 from the FBI for services related to "hunting for J.P. McCoy." Millirones testified that on March 2, 1989, he had been drinking coffee with Kennis McCoy and McCoy's wife, Rachel, when McCoy came down the hallway. Millirones hugged McCoy. Kennis McCoy and Rachel moved to a couch about four feet away. Millirones and McCoy began a discussion. Millirones testified that McCoy suggested that he find out about Jimmy Tincher because "he wanted to knock him off." On cross-examination, Millirones acknowledged that the television (interrupting attention) could have been on. Yet it was claimed that somehow Millirones knew that Rachel and Kennis McCoy had been listening, although he did not remember if they had been having another conversation or not. Millirones also acknowledged that, when he had testified at a previous trial about the incident, he had not mentioned that Kennis McCoy and Rachel were present and on the couch.

50

The question, even assuming Kennis McCoy was present and heard everything, is whether the overheard conversation sufficed to allow the jury to find that, almost two months later, Kennis McCoy knew and agreed to participate in his father's intended killing of the government witnesses and that such was the ultimate purpose of the trip with Cremeans. Stating the proposition is to refute it. Millirones' testimony did not prove that Kennis McCoy knew beyond a reasonable doubt that he was partaking in a conspiracy to kill federal witnesses. Unlike the other participants who, within the time period of the conspiracy--late March to early May--made statements or took actions which revealed a knowledge of and participation in a concerted attempt to kill various witnesses, Kennis' only action during the time was to drive Cremeans around at his father's request.

51

The government has shown grounds for suspicion but no more. We are unwilling to transfer criminally the sins of the father to the son on the basis of what the record in the present posture of the case discloses. The government lacked evidence which would have allowed a reasonable jury to find sufficient evidence, and the jury that convicted Kennis McCoy may well have been confused by impermissible factors. For example, Kennis McCoy's father also had claimed that the drive was merely investigative; however, the jury had been given substantial reason to disbelieve McCoy's testimony. The jury may have permitted its disbelief of John McCoy to become the grounds for its refusal to accept Kennis McCoy's claim that he thought the drive was investigative. As the court in Espinoza-Seanez wrote, although Kennis McCoy entered into an area which "reeks of something foul," 862 F.2d at 538-39, neither his drive with Cremeans nor his alleged presence in the room with Millirones, without more, either in tandem or standing alone, supports the conviction. We accordingly reverse Kennis McCoy's convictions and remand for a new trial.

52

Although Kennis McCoy was convicted of other charges beyond conspiracy, because we reverse and remand the conspiracy charge, we likewise reverse and remand his remaining convictions. The government's case against him on the other charges stemmed from his status as a conspirator. No longer a part of the conspiracy, he cannot be held responsible under Pinkerton v. United States, 328 U.S. 640 (1946) (holding each conspirator potentially liable for overt acts of every other conspirator done in furtherance of a conspiracy). In addition, the government never established sufficient evidence that Kennis McCoy possessed knowledge to support a conviction as an aider and abettor. The following discussion of the remaining charges thus applies only to Nance, Clary, and McCoy.

D. Attempt to Kill

53

The defendants have argued that the government failed to offer sufficient evidence to convict them of attempt to kill. To prove attempt, the government must show intent and a substantial step. The defense relies on United States v. Buffington, 815 F.2d 1292 (9th Cir.1987), and its holding that "[m]ere preparation does not constitute a substantial step." Id. at 1301. In the case, the Ninth Circuit found that assembling handguns and driving twice by the bank raised only a suspicion of intent and did not constitute a substantial step. However, the court noted that "[t]here was not admissible testimony concerning defendants' intent by an informant or co-conspirator." Id. at 1302. Moreover, even if, for argument's sake, we accept that McCoy, Clary, and Nance cannot be considered principals, they were also charged, in the alternative, as aiders and abettors under 18 U.S.C. Sec. 2 or liable for others' actions under Pinkerton, 328 U.S. 640. To prove aiding and abetting, the government must show that the defendant " 'knowingly associated himself with and participated in the criminal venture.' " Flowers v. Tandy Corp., 773 F.2d 585, 590 (4th Cir.1985) (quoting United States v. Winstead, 708 F.2d 925, 927 (4th Cir.1983)). To prove liability under Pinkerton, once a conspiracy has been established, each overt act done in furtherance of the conspiracy by any conspirator is imputed to all conspirators.

54

The defense's repeated citation to Buffington, therefore, can be distinguished. No informants testified in Buffington. In the defendants' case, two informants, Cremeans and Runyon, testified as to the activities. Beyond the informants' testimony, the defendants' actions cast doubt on their claims that they never intended nor took substantial steps towards attempting to kill. As previously discussed, Nance and Clary attempted to locate Evans. Searching for her was a substantial step towards killing her. Moreover, their assistance to Cremeans in obtaining his release from jail and their continuing discussions with him about hoping to kill Evans established intent and substantial steps. They never withdrew from the plan. Furthermore, with respect to the other witnesses, Nance and Clary, at the least, aided and abetted the attempt through discussions with Cremeans, assistance with his bail, provision of the gun, and counsel to keep him calm. Nance and Clary knew of the plan to kill federal witnesses and continued to assist Cremeans, Runyon, and McCoy in the venture. McCoy's claim that he never left jail and never instructed Cremeans to kill anyone does not refute the other evidence showing his substantial efforts to attempt to kill. Moreover, McCoy arranged the trip and promised Cremeans money. He continued to participate in the plan after Carolyn Runyon Smith had been "killed." From within the jail, he knowingly associated and involved himself with the attempt. Sufficient evidence supports the convictions of McCoy, Nance and Clary.

E. Use of Interstate Commerce Facilities

Title 18 U.S.C. Sec. 1958 states:

55

Whoever travels or causes another ... to travel in interstate ... commerce, or uses or causes another ... to use the mail or any facility in interstate ... commerce, with the intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, shall be fined .. or imprisoned....

56

"Facility of interstate commerce" includes "means of transportation and communication." Id.

57

The defendants have claimed that insufficient evidence existed to prove that they caused Cremeans to travel in interstate commerce and caused another to use a facility of interstate commerce with the intent that murder be committed. Moreover, they argue that no evidence was presented to show that a promise to pay had been made. The government has replied that McCoy caused Cremeans to travel across the West Virginia/Kentucky border during his trip with Kennis McCoy. Nance and Clary either aided and abetted the scheme or actions can be imputed to them under Pinkerton.

58

In short, sufficient evidence sustains the convictions. McCoy arranged the trip. Clary and Nance knew of it. Their activities furthered the trip rather than hindered it. Cremeans and Nance, Clary, and McCoy discussed in detail when and how much Cremeans would be paid. Moreover, the defendants posted bail for Cremeans in anticipation of his performance of the murder scheme--an event of pecuniary value satisfying Sec. 1958. In addition, the defendants used the telephone, in particular, C & P phone lines, to carry out their discussions. The tapes recorded collect calls arranged by C & P operators. McCoy also gave Runyon his mother's phone number to give to Cremeans. The government proved sufficient use of interstate communication facilities to support the convictions.

59

F. Firearms and the Commission of a Violent Crime

60

The defendants have argued that their convictions should be reversed because the attempted murder convictions should be reversed and, without a violent crime, the firearm conviction does not hold. Yet, in light of our affirmance of the attempted murder conviction, the argument fails. The defendants also have argued that the government failed to show one essential element of an 18 U.S.C. Sec. 924 conviction, namely, that the AR-15 "was designed to expel a projectile by the action of an explosive." The argument lacks merit. Special Agent Turner testified that the AR-15 was operational and capable of firing. Clary testified that she had fired the gun once, and had explained to Cremeans how to fire it. Nance asked Cremeans how he liked the gun. Moreover, in a case cited by defendants, United States v. York, 830 F.2d 885 (8th Cir.1987), cert. denied, 484 U.S. 1074 (1988), the court wrote:

61

Robinson asserts that his convictions cannot stand because the gun he used ... was inoperable because it had no firing pin, and that the cylinder did not line up properly with the gun barrel.... Section 921(a)(3) does not require a firearm to be operable.... Rather, under the plain language of the statute, it is enough that the "weapon ... is designed to ... expel a projectile...." Appellant does not contend that the weapon used here was not designed to expel a projectile by the action of an explosive, nor does it appear that he reasonably could make that argument on the basis of the record in this case.

62

Id. at 891. Section 921(a)(3) contains the firearm definition for Sec. 924. When another respected court has determined that a gun without a firing pin and with a nonaligned barrel and cylinder does not support an argument that the gun was not "designed" to fire, we cannot accept that the government had insufficient evidence that the AR-15, not only was designed to, but was apparently capable of, being fired. The government's evidence satisfied Sec. 924.

II. Denial of Mistrial

63

Defendants argue that the judge should have granted their motion for a mistrial because matters highly prejudicial to the accused were brought out by the government. The defendants refer to Exhibits 11 and 12. Exhibit 12 was a tape of a conversation between Clary and Cremeans. When the government played it, the first and only words were "[t]he preceding was a consensually monitored recorded--." The government immediately stated that audio difficulties were apparent and stopped the tape. When the defense complained, the government offered to withdraw the tape. Later the government reintroduced Exhibit 12 with no objections. Exhibit 11 was the tapes of Cremeans' and Kennis McCoy's conversation during the interstate trip. The tape ran out before the trip ended. Cremeans testified that, in the part of the conversation not taped, Kennis McCoy had shown him "how to get back ... in case I got any heat" and noted that Kennis McCoy had, once again, felt he was being followed.

64

The standard of review for mistrial is abuse of discretion. United States v. West, 877 F.2d 281, 287-88 (4th Cir.1989). We perceive no abuse of discretion in denying the motion for a mistrial. Nothing prejudicial to the defendants occurred with respect to the handling of Exhibit 12. The first time it was played the jury heard only what apparently was the end of the tape, a completely innocuous description of the tape. Likewise, no prejudice arose because of Exhibit 11. The defendants have offered no cases, and we have located none, to support the argument that a witness cannot testify to an unrecorded portion of a conversation on which an attempt to record had been made. We see nothing wrong with Cremeans' testimony. Moreover, neither instance approaches the situation confronted in Stewart v. United States, 366 U.S. 1 (1961). In Stewart, the Supreme Court found a mistrial. In a first-degree felony murder charge, the defendant claimed insanity as a defense. In two earlier trials, he had faced a jury and had not testified. In both trials he had been convicted and sentenced to death; however, the convictions were set aside for errors in the jury instructions. In the third trial, the defendant took the stand. The prosecutor asked the defendant if he had been tried before and whether he had taken the stand. The Court found the question prejudicial, noting that a jury's deliberations could be affected by the questions. It is to be doubted that Nance, Clary, or McCoy demonstrated prejudice at all. In any event, the allegations of prejudice are not of the same quality, let alone quantity, to justify a finding of prejudice requiring mistrial.

III. Judicial Notice

65

Finally, the three defendants have argued that the judge erred in taking judicial notice that C & P Telephone Company is a facility of interstate commerce. Federal Rule of Evidence 201 states that judicially noticed facts are those "not subject to reasonable dispute" because either the fact is "generally known within the territorial jurisdiction of the court" or "capable of accurate and ready determination to sources whose accuracy cannot reasonably be anticipated." The standard of review for judicial notice is abuse of discretion. See Person v. Miller, 854 F.2d 656, 660 (4th Cir.1988), cert. denied, 489 U.S. 1011 (1989).

66

The defendants have offered no reason why the judge could not take judicial notice of the interstate character of C & P. They have argued that the interstate commerce facility is an element of Sec. 1958; therefore, the court could not take notice of it. The defense offers no support for the syllogistic argument. Even accepting that the defense could appeal when only one defendant's counsel objected to the evidence, and then on grounds of relevancy, not of impropriety of judicial notice, we find that the judge could take judicial notice of C & P. No dispute exists that C & P is a facility of interstate commerce and the fact is generally known within the court's territorial jurisdiction. The judge did not abuse his discretion by taking judicial notice.

67

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

1

Throughout we refer to John McCoy as "McCoy" but employ for McCoy's son, Kennis McCoy, his full name to prevent confusion

2

Indeed, repeatedly in the telephone discussions, the defendants reminded each other about the possibility of being overheard or having the phone lines tapped

3

At oral argument, Nance's counsel attempted to argue that Nance's comment, "We'll know more about that hussy today," did not refer to Evans. Not only does the argument contradict appellants' brief which cites the page as an example of "At most, Nance tried to determine Evans' whereabouts," it also belies the obvious interpretation of the dialogue. Nance has used the male pronoun at the beginning; however, the use was meant as a code as evidenced from Cremeans' confusion:

Nance: "What you said he was up toward the east end or up toward Barboursville or Milton he lived?"

Cremeans: "I swear to God I can't remember who the hell you're talking about."

Nance: "Well, anyways we'll know more about that hussy today, too."

Cremeans: "Oh, okay, oh, yeah. Okay."

Nance: "Now, you now who I'm talking about?"

Cremeans: "Yeah, I know what you're talking about."

4

Nance stated:

"And then in turn it will just be three or four days because me and you will take what [sic] we was talking about."

* * *

"And I'll assist."

* * *

"But you understand what I'm saying?"

* * *

"I'll assist."

5

Cremeans: "... You just tell Robert [Nance] to make up his mind about that Adkins' girl. I got to know whether to do something with her or if he wants her to just disappear or whatever he wants, I got to know."

Clary: "Well, I found out she's in Milton, I'm trying to get a hold--"

* * *

"And as soon as I'm going to talk to some people this afternoon and find out for sure."

* * *

Cremeans: "Have you ever found Bev [Evans]?"

Clary: "No, not yet. I was supposed to have--I was supposed to have--I'm trying to get--...."

* * *

Cremeans: "What we going to do about Bev [Evans], forget her?"

Clary: "No. There's--I'm finding out tomorrow. I was supposed to find out today, I was going to (unintelligible) where she's at exactly. If they don't have it for me tomorrow, you can probably forget it."

6

But without disclosing to Kennis McCoy the corrupt wherefore of doing so

7

Nance: "We'll go on our merry way."

Cremeans: "You say Friday for sure?"

Nance: "Uh huh. I'll see you about it then."

Clary was on the phone during the conversation. The Friday date was a change from an earlier plan. During a previous conversation, Nance had responded "or Saturday" to Cremeans' question: "You mentioned something about a--maybe a tentative date of Thursday for you?"

8

The defense argued that it had not been warned about Millirones' testimony and implied that the government had known about Millirones' existence prior to his sudden appearance in court. The court permitted the testimony as rebuttal