On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 94-cr-00138-1)
BEFORE: COWEN, LEWIS and WEIS, Circuit Judges
Argued September 11, 1996
Merritt G. Stansfield appeals from a judgment rendered after a jury trial convicting him of three counts of mail fraud in violation of 18 U.S.C. Section(s) 1341, two counts of engaging in unlawful monetary transactions (money laundering) in violation of 18 U.S.C. Section(s) 1957, one count of tampering with a witness in violation of 18 U.S.C. Section(s) 1512(a)(1)(C), and one count of criminal forfeiture pursuant to 18 U.S.C. Section(s) 982. He was sentenced to, inter alia, incarceration for a term of 306 months.
Stansfield contends that his conviction on two of the three mail fraud counts, the two money laundering counts, and the criminal forfeiture count must be reversed and remanded for a new trial by reason of irregularities occurring during jury deliberations. He also argues that the conviction on witness tampering must be vacated and remanded with instructions to enter a judgment of acquittal on that count due to insufficient evidence. Alternatively, he argues that the judgment of conviction on that count must be reversed and remanded for a new trial on the ground that the jury was not properly instructed. Finally, he contends the district court erred in several respects in applying the federal sentencing guidelines.
We will affirm the judgment of conviction on all counts except the witness tampering count. As to that count, we will reverse and remand for a new trial. In light of this disposition, we need not reach Stansfield's argument that his sentence was contrary to the guidelines.
We take the facts with regard to the counts upon which Stansfield was convicted in the light most favorable to the government, the verdict winner. In 1990 Stansfield's home was destroyed by fire. Erie Insurance Company agreed to reimburse Stansfield for the replacement cost of the insured items, as well as the cost from the loss of the use of his house. In May of 1992, Stansfield sent Erie a list of insured items he claimed were lost in the fire. Some of these were later found intact at other locations. By reason of the loss, Erie sent Stansfield checks totaling approximately $225,000. Stansfield used some of these funds to purchase a boat and trailer.
Erie and state law enforcement officials began an investigation of the fire in 1992. Although they determined that arson caused the fire, Stansfield was never conclusively found to be the arsonist. Investigators from Erie and Pennsylvania State Police spoke with Dwight Hoffman, a friend of Stansfield's, several times in 1992 and early 1993. Hoffman was quite knowledgeable about Stansfield's home and its contents; he had stored many of Stansfield's personal effects in his home prior to the fire.
Hoffman's wife Dee was also a friend of Stansfield's. When Hoffman and Dee ended their relationship in August of 1992, Stansfield and Dee became romantically involved. Some evidence suggests that Dee Hoffman was complicit in Stansfield's scheme.
State troopers also communicated with Jack Love, whom Stansfield had solicited to burn his home. Stansfield threatened to kill Love if he told anyone of the solicitation. Love informed Stansfield in May of 1993 that law enforcement officials had contacted him about the fire.
That September, Erie referred the matter to federal postal inspectors. The Postal Inspector presented the case to the United States Attorney's Office, which requested that the Postal Inspection Service continue the investigation.
The witness tampering charge stems from an incident that occurred on October 7, 1993. On that date Stansfield entered Dwight Hoffman's home uninvited. Hoffman's parents, Eugene and Joyce, were present but Dwight Hoffman was not. When asked what he was doing there, Stansfield replied that he was "sick and tired of [Dwight] running down [Stansfield's] name and ruining [his] business." App. at 43. Stansfield struck the Hoffmans, knocking them to the ground. He repeatedly kicked Eugene Hoffman in the head and body. When Eugene Hoffman attempted to get up, Stansfield knocked him down again, kicking him in the head until Hoffman was partially unconscious. Stansfield took both the Hoffmans to the basement, where he bound their hands and feet. When Eugene Hoffman tried to free himself, Stansfield kicked him in the head several more times.
Stansfield then went upstairs, returning shortly with a shotgun and shells. He donned latex gloves, tinted "shooting" glasses, and ear protectors that are worn on shooting ranges. He loaded the gun and waited for Dwight Hoffman to arrive. When Dwight Hoffman appeared, Stansfield took him to the basement, hit him with the butt of the shotgun, and ordered him to sit next to his parents. Stansfield then placed the shotgun on the throat of Dwight Hoffman and stated, "I'm going to ask you some questions, and I want the truth, because the gun is loaded, the safety is off, and my finger is on the trigger, is that clear?" App. at 78.
Stansfield first inquired why Dwight Hoffman had "sen[t] the cops after [him] about [his] house," or why Dwight had "called the police about his fire." App. at 54, 79. At some point Dwight Hoffman lunged for the gun. It went off, firing a shot between Dwight Hoffman's neck and Joyce Hoffman's head. A struggle ensued. Eventually Dwight and Eugene Hoffman were able to subdue Stansfield until a police officer arrived.
Stansfield was indicted on a twelve count indictment. Counts I through IV charged mail fraud. Count V charged using fire to commit mail fraud. Counts VI through X charged money laundering. Count XI, stemming from the incident on October 7, 1993, charged tampering with a witness. Count XII was criminal forfeiture predicated on the money laundering counts.
The instructions given to the jury on Count XI are one focus of this appeal, and so we recite them at length: The grand jury charged, with respect to count 11, that on or about October 7, 1993, in the Middle District of Pennsylvania, the defendant, Merritt G. Stansfield, Jr., did assault and attempt to kill one Dwight E. Hoffman with the intent to prevent Hoffman's communication of information relating to Stansfield's commission of federal offenses . . . to a law enforcement officer, this being in violation of Title 18, United States Code, Section 1512(a)(1)(C).
The relevant statute on this subject is Title 18, United States Code, Section 1512, and provides as follows: Whoever knowingly uses intimidation or physical force, with intent to hinder, delay, or prevent the communication to a law enforcement officer of information relating to the commission or possible commission of a federal offense shall be guilty of a crime.
The statute is designed to protect persons who may be called to testify or give evidence in a federal proceeding, either civil or criminal, and persons who have information about federal crimes. The integrity of the federal system of justice depends upon the cooperation of such potential witnesses. If persons with information do not come forward, produce evidence and appear when summoned, the criminal justice system will be significantly impaired. This statute was devised to make it unlawful for anyone to tamper with such a witness in the manner described by the statute.
In order to prove the defendant guilty of the charge in the indictment, the government must prove each of the following elements beyond a reasonable doubt: First, that on or about the date charged, the defendant used intimidation, physical force, or threats, or attempted to do so; and second, that the defendant acted knowingly and with intent to prevent the communication to a law enforcement officer of information relating to the commission or possible commission of a federal offense. App. at 103-05.
The district court then elaborated on both of these elements and added: "The law does not require that a federal proceeding be pending at the time or even that it was about to be initiated when the intimidation, physical force or threats were made." App. at 106. Stansfield took no objection to these portions of the jury charge.
The jury returned a partial verdict convicting Stansfield on Counts I, II, III, VI, VII, and XI. As the jury was polled, juror number two was excused from the jury box because she was not feeling well. She eventually returned and, in the presence of the other jurors, indicated her concurrence in the guilty verdicts. During a subsequent recess, jurors number one, two, and nine communicated to the deputy clerk that they wished to speak with the court. They did not indicate the reasons for wanting to do so. After consulting with counsel, the court declined to hear from the jurors at that time.
The jury was brought into the courtroom and directed to deliberate on Count XII, which had not previously been submitted to it. A mistrial was subsequently declared as to Counts IV, V, VIII, IX, and X. The government later dismissed those counts subject to reinstatement should any portion of the conviction be vacated. Immediately after the jury returned to the jury room to commence deliberations on Count XII, jurors number one, four, and nine abruptly left the jury room and refused to return. *fn1 The three apparently were crying and were "emotionally distraught." App. at 143. They stated that "they had reasons for [initially] voting the way they did" and had been told they were "stupid." App. at 143. At this point, Stansfield waived his right to a jury trial with regard to Count XII and the jury was discharged. The district court found Stansfield guilty on Count XII.
The district court thereafter met with the three jurors, first as a group and later individually. All three were women who had previously asked to speak with the district court. All three stated they had been pressured into concurring with the guilty verdicts by the jury foreman who, along with other jurors, *fn2 had used gender-based insults to intimidate them. The jurors stated as an example that they were called "stupid female[s]" and were told that they "didn't have minds" because they are women. App. at 169, 156. One of the jurors stated that a fourth juror, who had not felt well during the jury poll, also had been affected by these gender-based insults. All three indicated that, but for the pressure that the other jurors exerted on them, they would have voted for acquittal on Counts II, VI, and VII. Juror number one related that she also would have voted for acquittal on Count I.
Stansfield moved to vacate the convictions on those four counts. The court denied the motion. The district court sentenced Stansfield to, inter alia, 306 months incarceration. The sentence was to run concurrently with a 7 1/2 to 15 year sentence imposed in the Court of Common Pleas of Dauphin County, ...