Decided: January 20, 2016
In a case stemming from a murder-for-hire plot, the Fourth Circuit found that the district court did not constructively amend the charges against the defendants through erroneous jury instructions. The Fourth Circuit also found that the district court did not erroneously admit hearsay or character evidence. On that basis, the Fourth Circuit affirmed the district court’s convictions.
In April, 2013, Aaron Wilkinson was stopped by police officers while driving in Charleston, South Carolina. Wilkinson told police that he and a former prison cellmate, Samuel Yenawine, were part of a not-yet completed murder-for-hire plot to kill Nancy Latham (Cannon). As part of this plot, he and Yenawine, with the help of Yenawine’s girlfriend, had rented a car in Kentucky and driven to South Carolina where Yenawine bought a pay-as-you go cell phone, and used it to communicate with a woman who said she would meet with them at a North Charleston motel. Wendy Moore arrived at the motel, rented a room for Yenawine and Wilkinson, and met with Yenawine. Yenawine returned from the meeting with $5,000. Moore was the girlfriend of, and assistant to, Christopher Latham (Latham), a banker and the estranged husband of Cannon. Moore was also Yenawine’s ex-wife. Wilkinson later saw Moore and Yenawine meet, with Yenawine obtaining a manila envelope “hit packet,” with information on Cannon. The contents of the packet were subsequently linked to Latham and Moore, and independent evidence also corroborated Wilkinson’s story. Moore, Yenawine, and Wilkinson were arrested. Yenawine committed suicide in jail two months later.
In August, 2013, a grand jury indicted Moore, Latham, Wilkinson, and Yenawine’s girlfriend, Palmer. Moore and Latham were indicted on various counts, including conspiracy to use interstate commerce facilities in the commission of murder-for-hire and use of such facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958(a). At trial, the jury convicted Moore of all counts against her, and Latham of the use of interstate commerce facilities charge. The district court sentenced Moore to 180 months imprisonment, and Latham to 120 months imprisonment. Moore and Latham appealed, arguing that the court improperly instructed the jury, leading to constructive amendment of the charges against them in violation of their Fifth Amendment right to indictment by a grand jury. Moore and Latham also challenged as improper the court’s admission of hearsay evidence and character evidence.
The Fourth Circuit first found that the court did not constructively amend the conspiracy to use and use of facilities charges against Moore and Latham by improperly instructing the jury. The Fourth Circuit noted that 18 U.S.C. § 1958(a) encompasses two distinct types of charges, one for traveling or causing another to travel in interstate commerce connected to a murder-for-hire, and one for using or causing another to use facilities of interstate commerce. Moore and Latham were changed under the travel prong. In its closing instructions, the district court informed the jury that Moore and Latham were charged under the travel prong, but made two references to the facilities prong in explaining the statute under which Moore and Latham were charged. The Fourth Circuit found that, viewed under the totality of the circumstances, the district court had not constructively amended the charges against Moore and Latham. The majority of the jury instructions did not refer to the facilities prong, the arguments at trial spoke only to the travel prong, and any evidence
of facilities use presented at trial was presented only as substantive evidence of the plot itself, not as evidence for the facilities prong.
The Fourth Circuit next found that the district court did not improperly admit hearsay evidence. The district court admitted testimony from a cellmate of Yenawine’s about a statement Yenawine made before committing suicide in which he discussed the plot. The district court admitted the statement as a statement against interest. Moore and Latham challenged the trustworthiness of the statement. The Fourth Circuit found the statement trustworthy because Yenawine had no reason to lie to his cellmate, and other evidence corroborated his statement. The Fourth Circuit also found that admission of the statement did not violate the Sixth Amendment’s confrontation clause, because statements between prisoners are not testimonial.
Finally, the Fourth Circuit upheld the district court’s admission of various pieces of character evidence against Moore. The Fourth Circuit found that Moore and Latham had not established any error in admitting the evidence, and that even if the admission of the character evidence did rise to the level of plain error, its admission did not have a serious effect on the proceedings. On this basis, the Fourth Circuit upheld the district court’s convictions of Moore and Latham.
Katherine H. Flynn