Petition for Writ of Certiorari — Doody v. Arizona

oe, Supreme Court, U.S.

O5-165y% | FILED

NO.

: CLERK

INTHE “~---- : :

Supreme Court of the United States

OCTOBER TERM, 1995

JERRY DALE LOWE, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent.

Petition Wnit of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Rebecca A. Baitty

Rebecca A.Baitty, P.A.

9 Fillmore Drive

Sarasota, FL 34236

(941) 388-3400

Counsel for Petitioner

II.

Il.

IV.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE FOURTH CIRCUIT’S RULING IN

THIS CASE EXPANDS THE SCOPE OF 18 U.S.C.

§ 33 FAR BEYOND THE CAREFUL LIMITS

DRAWN BY CONGRESS, BY EFFECTIVELY

DELETING THE STATUTORY REQUIREMENTS

THAT THE VEHICLE BE USED JN INTERSTATE

COMMERCE, AND FOR THE COMMERCIAL

TRANSPORTATION OF PASSENGERS,

PROPERTY OR CARGO

WHETHER THE FOURTH CIRCUIT’S RULING

UNDULY RESTRICTS THE HEARSAY

EXEMPTION OF RULE 801(d)(1)(B) OF THE

FEDERAL RULES OF EVIDENCE BY HOLDING,

CONTRARY TO THE THE RULINGS OF OTHER

COURTS OF APPEALS, THAT A PRIOR

CONSISTENT STATEMENT IS ADMISSIBLE

ONLY FOLLOWING AN EXPRESS

IMPEACHMENT OF THE DECLARANT

WHETHER THE FOURTH CIRCUIT’S

APPLICATION OF RULE 804(b)(3) OF THE

FEDERAL RULES OF EVIDENCE CREATES AN

UNREASONABLY HIGH THRESHHOLD FOR

THE INTRODUCTION OF A WITNESS’

CORRABORATED STATEMENT AGAINST

INTEREST WHICH ALSO EXCULPATES THE

DEFENDANT

WHETHER THE COMPETENT EVIDENCE IN

THIS CASE IS SUFFICIENT TO SUPPORT

PETITIONER’S CONVICTION

ae ee ee era

SE TENT 5 Ee ee et

TABLE OF CONTENTS

TABLE OF AUTHORITIES .... se iil

OPINION BELOV .... haes.4

STATEMENT OF JURISDICTION fe es Sei

STATUTES INVOLVED . ba diee a ee | I

STATEMENT OF THECASE .............. 4

PN 6 0b ok hb po doo veiw ce rewcveck : 7

.. THE FOURTH CIRCUIT’S OPINION EXPANDS

THE SCOPE OF § 33 FAR BEYOND THE

CAREFUL LIMITS DRAWN BY CONGRESS ..._.. 7

A. THE FOURTH CIRCUIT OPINION

NULLIFIES CONGRESS’ RESTRICTION

OF SECTION 33 TO VEHICLES USED IN

THE COMMERCIAL TRANSPORTATION

OF PASSENGERS, PROPERTY

RU is Se ik hoes 0 wie & 9

B. THE FOURTH CIRCUIT RULING

NULLIFIES CONGRESS’ RESTRICTION

OF SECTION 33 TO VEHICLES “USED,

OPERATED OR EMPLOYED IN

INTERSTATE COMMERCE” .... 12

C. THE FOURTH CIRCUIT OPINION

TRANSFORMS SECTION 33 INTO A

POWERFUL TOOL FOR FEDERAL

POLICING OF LOCAL LABOR

DISPUTES, CONTRARY TO THE

EXPRESSED INTENT OF CONGRESS 18

II. THE EVIDENCE IS INSUFFICIENT TO

SUSTAIN PETITIONER’S CONVICTION ........... 23

III. THE COURT OF APPEALS IMPROPERLY

AFFIRMED THE DISTRICT COURT’S REFUSAL

TO ADMIT EVIDENCE THAT LOWE NO

LONGER HAD POSSESSION OF THE WEAPON

AT THE TIME OF THE SHOOTING ................ 27

CAAA css SUF e Ro AD Cae lores ESS ee 33

il

TABLE OF AUTHORITIES

CASES

Barrett v. United States,

ea tp ee PRS SSIES Sree are Sn PS ee en es Sm 14

Beech Aircraft Corp. v. Rainey,

488 U.S. 153, 109 S. Ct. 439, 102 L. Ed. 2d 445 (1988) ......... 28

In United States v. Monhoiland,

Sw fe Be ee Lo Ro ERE ey os ee ere

National Labor Relations Board v. Reliance Fuel Oil Corp.,

371 U.S. 224, 83 S. Ct. 312, 9 L. Ed. 24 279 (1963) ............ 13

Perez v. United States,

402 U.S. 146, 91 §. Ct. 1357, 28 L. Ed. 24 686 (1971) ....... 13-14

Russell v. United States,

471 U.S. 858, 105 S. Ct. 2455, 85, L. Ed. 2d 829 (1985)......... 13

Scarborough v. United States,

431 US. $63, 97S. Ct. 1963, 52 L. Ed. 2d 582 (1977) .......... 13

United States v. American Building Maintenance Industries,

422 U.S. 271, 95 S. Ct. 2150, 45 L. Ed. 24.177 (1975) ... 13-14, 18

United States v. Bass,

404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 24 488 (1971) ......... 19

Ui

United States v. Casoni,

950 F208 003 06 Ce Soper oi a 28

United States v. Daniels,

S48 FOG SORE Ge, Feral a. his ccc cices canada dbevewes 18

United States v. Enmons,

410 U.S. 396, 93 §. Ct. 1007, 35 L. Ed. 2d 379 (1973)........ 19-22

United States v. Gullett,

___ F.3d __, 1996 U.S. App. LEXIS 2027(4th Cir. 1996) ...... 20

United States v. Heightland,

665 F.26 94 Co Coe. 19... .... re A 18

United States v. Lambert,

994 F.2d 1066 (40 Ge: 1908) 3 SVG ee

United States v. Lopez, ,

__ US. __, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) .... 13,18

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

__US._, 113 S. Ct. 2786, 125 L. Ed. 24 469 (1993) ....... 25

United States v. Voss,

707 F-26363 GA Ge. 1966) .. 2... Re Ae 16

U.S. v. Montague,

958 F.2d 1094, 294 U.S. App. D.C. 236 ............... ao 29

STATUTORY MATERIALS

FO USC. 610 os oo oe eas eee eee 14

BS US. BSd iio ons vc ceds bnetecssseee eee 1,6,9

IWUSC. 634 ....2 0b ti eee 10, 14

pth 8 om D ° Seer WaT Se Sealers passim

| sa EI le ae Bs Rae i ge care BBS a 6

DMS ce Pesce. ory sere cs eee erie 13, 15

pitas BE ie 3,6

ek tah ie le Lee Beane REEL: 14

ee eae OP ese: A 1

32 Cong. Rec. $4337-01 (daily ed. April 16, 1986) ....... 21

Conf. Rep. No. 84-2287, 84th Cong., 2d Sess. (1956),

reprinted in }956U.S.C.C.A.N. 3150......... i

H.R. Rep. No. 1979, 84th Cong., 2d Sess. (1956), reprinted

i Pr I or 5 Gos coc avedece mincicvesss 11,14

S. Rep. No. 225, 98th Cong., Ist Sess. (1983), reprinted in

1984 U.S.C.C.A.N. 3182, 3500 eee n cence nese eset eersssatees 12

ey Ris pi ae ae Ee cr ies amie ip Srl ena a 27-29

PE eich ret ly esate ake o sd bia cee ase wes 30

MISCELLANEOUS

47 A.L.R. Fed. 639-651 ............ Rrcavicavee ei wed cena

ls — . een

OPINION BELOW

The opinion of the United States Court of Appeals for the Fourth

Circuit is reported at 65 F.3d 1137 (1995), and also is set forth in the

Appendix to the Petition at 1. Record citations in this Petition are to the

pages of the Joint Appendix submitted to the Court of Appeals.

STATEMENT OF JURISDICTION

Petitioner’s conviction for violations of 18 U.S.C. §§ 33 and

§ 924(c)(1) was affirmed by the United States Court of Appeals for the

Fourth Circuit on September 20, 1995. The Court of Appeals denied his

Petition for Rehearing on November 24, 1995.

This Court’s jurisdiction to review the decision of the Court of

Appeals is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

18 U.S.C. § 31. Definitions

When used in this chapter the term--

"Aircraft engine", "air navigation facility", "appliance", "civil

aircraft", "foreign air commerce", "interstate air commerce", “landing

area", “overseas air commerce”, "propeller", "spare part" and "special

aircraft jurisdiction of the United States" shall have the meaning ascribed

to those terms in sections 40102(a) and 46501 of title 49.

"Motor vehicle” means every description of carriage or other

contrivance propelled or drawn by mechanical power and used for

commercial purposes on the highways in the transportation of passengers,

passengers and property, or property or cargo;

“Destructive substance" means any explosive substance,

flammable material, infernal machine, or other chemical, mechanical, or

radioactive device or matter of a combustible, contaminative, corrosive,

or explosive nature;

"Used for commercial purposes" means the carriage of persons

or property for any fare, fee, rate, charge or other consideration, or directly

or indirectly in connection with any business, or other undertaking

intended for profit;

"In flight" means any time from the moment all the external doors

of an aircraft are closed following embarkation until the moment when any

such door is opened for disembarkation. In the case of a forced landing

the flight shall be deemed to continue until competent authorities take over

the responsibility for the aircraft and the persons and property on board;

and

"In service" means any time from the beginning of preflight

preparation of the aircraft by ground personnel or by the crew for a

specific flight until twenty- four hours after any landing; the period of |

service shall, in any event, extend for the entire period during which the |

aircraft is in flight.

7” Te ee ee ee ee

18 U.S.C. § 33. Destruction of motor vehicles or motor vehicle

facilities

Whoever willfully, with intent to endanger the safety of any

person on board or anyone who he believes will board the same, or with

a reckless disregard for the safety of human life, damages, disables,

destroys, tampers with, or places or causes to be placed any explosive or

other destructive substance in, upon, or in proximity to, any motor vehicle

which is used, operated, or employed in interstate or foreign commerce

which is used, operated, or employed in interstate or foreign commerce,

or its cargo or material used or intended to be used in connection with its

operation; or

Whoever willfully, with like intent, damages, disables, destroys,

sets fire to, tampers with, or places or causes to be placed any explosive

or other destructive substance in, upon, or in proximity to any garage,

terminal, structure, supply, or facility used in the operation of, or in

support of the operation of, motor vehicles engaged in interstate or foreign

commerce or otherwise makes or causes such property to be made

unworkable, unusable, or hazardous to work or use; or

Whoever, with like intent, willfully disables or incapacitates any

driver or person employed in connection with the operation or

maintenance of the motor vehicle, or in any way lessens the ability of such

person to perform his duties as such; or

Whoever willfully attempts to do any of the aforesaid acts--

shall be fined not more than $10,000! under this title or imprisoned not

more than twenty years, or both.

18 U.S.C. § 924(c)

(c)(1) Whoever, during and in relation to any crime of violence or

drug trafficking crime (including a crime of violence or drug trafficking

crime which provides for an enhanced punishment if committed by the

use of a deadly or dangerous weapon or device) for which he may be

prosecuted in a court of the United States, uses or carries a firearm, shall,

in addition to the punishment provided for such crime of violence or drug

trafficking crime, be sentenced to imprisonment for five years, and if the

firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic

assault weapon, to imprisonment for ten years, and if the firearm is a

machine gun, or a destructive device, or is equipped with a firearm

silencer or firearm muffler, to imprisonment for thirty years. In the case

of his second or subsequent conviction under this subsection, such person

shall be sentenced to imprisonment for twenty years, and if the firearm is

a machine gun, or a destructive device, or is equipped with a firearm

silencer or firearm muffler, to life imprisonment without release.

Notwithstanding any other provision of law, the court shall not place on

probation or suspend the sentence of any person convicted of a violation

of this subsection, nor shall the term of imprisonment imposed under this

subsection run concurrently with any other term of imprisonment

including that imposed for the crime of violence or drug trafficking crime

in which the firearm was used or carried.

'A 1994 amendments struck out "not more than $10,000" and inserted

"under this title” following "shall be fined". Pub.L. 103-322, Title XXXIII,

§ 330016(1)(L), 108 stat. 2147.

STATEMENT OF THE CASE

In the spring of 1993, the United Mine Workers of America

[hereinafter “UMWA”] began a strike against Arch of West Virginia

{hereinafter “Arch”’] at its Ruffner Mine in Logan County, West Virginia

(JA 275-76; 280; 299-306; 363; 391; 447-48; 826). Arch is a division

of Apogee Coal Company, a Delaware corporation engaged in the

business of mining and selling coal in interstate markets (JA 511).

Arch’s regular, “in house” security was provided through

contract with Black Hawk Security, a West Virginia company which

offered “escort service, security services, armed and unarmed, bodyguard

services” (JA 447). Arch also employed Elite Security, a North Carolina

corporation, to provide extra protection for its personnel and equipment,

at the Ruffner Mine only, for the duration of the strike (JA 429). Elite

brought guards from other states to West Virginia to work at the Ruffner

site. Arch provided vehicles for use of the Elite guards, including trucks

reinforced with bullet resistant Lexan (JA 516).

There was no evidence that any coal was mined or shipped at the

Ruffner site for the duration of the strike. However, Arch contracted with

Deskins Contracting, a West Virginia company owned by Russell

Deskins, to clean a sediment pond at the mine during this period (JA 503;

513). Arch previously had received “either a warning or ... a citation to

clean the sediment pond” by a state environmental inspector, and the mine

was subject to closure if it received three citations for the same condition

in one year (JA 513-14).

Deskins’ workers were provided throughi a subcontract with Earth

Movers, Inc., an apparently related West Virginia corporation whose sole

purpose was to provide workers for Deskins (JA 491). Although both

Deskins and Earth Movers served some clients in the state of Kentucky,

their work for Arch was limited to the Ruffner site and had no interstate

component (JA 517). |

Two Deskins workers, Marion Hensley and Eddie York, began

work on the environmental clean-up on July 22, 1993 (JA 475-76). They

traveled to the sediment pond in separate pickup trucks (JA 478), both

titled in West Virginia in the name of Russell Deskins (JA 493), and

began cleaning the pond, using heavy equipment which had been brought

to the site earlier that day.

The union had stationed pickets near the entrance to the Ruffner

mine located on Slab Fork Hollow Road (JA 275; 281; 826). On the

afternoon of July 22, 1993, the group of picketers at the mine site totaled

at least thirteen, including five miners from the day shift who had

remained after their shift was over, and six miners who had arrived to

begin their assignments on the evening shift (JA 308; 394). At least two

other miners -- the Petitioner Jerry Dale Lowe, who was working an extra

shift in order to get another day off, and the local union president Earnest

Woods -- also were present at the picket site. Various witnesses indicated

that other, unidentified miners also were present at the site (JA 302; 308;

366-67; 370; 404; 409; 414).

Between 4:00 and 5:00 p.m., two vehicles owned by Arch and

driven by Elite Security guards passed the picket site, on their way up Slab

Fork Hollow Road to examine the mine site and make plans for the

evening’s security, and to escort Hensley and York off of the mine site (JA

430-31). One vehicle, a blue Ford Bronco, was driven by Larry Kopplin,

the site commander for the Elite guards (JA 432); another Elite supervisor

also was in the vehicle (JA 431). The second vehicle was a white, crew

cab pickup, reinforced with Lexan driven by James Richardson, an Elite

guard; its passengers were another Elite guard and the owners of both

Elite Security and Black Hawk Security (JA 431).

As the security vehicles drove up the hollow past them, the

picketers heard a loud noise, apparently a shot, originating from the guard

vehicles (JA 310; 402; 771; 827). Earnest Woods, the local union

president, also saw the driver of one of the guard vehicles open his door,

step out with one foot “and put a shot off” (JA 309-10; 771). Woods was

convinced that the guard had fired the shot “[t]o provoke us, to get

something on film” from the video cameras the guards always carried (JA

315). He and the other miners were angry about this incident, as well as

a pattern of verbal harassment by the guards (JA 285). Woods joined

some of the other miners , “talked about the guard shooting when he

pulled in” and told the others that he “intended to rock his vehicle when he

come out of there for shooting” (JA 314-15).

Soon afterwards, the group of miners began to break up. Woods

went into the tall weeds along the road, put on a mask, and waited for the

trucks to return (JA 317). Most, if not all, of the other miners did likewise

(JA 317). Petitioner Lowe crossed the road and took up a position down

a steep bank, a few feet from a nearby creek (JA 772-75).

At approximately 5:30 p.m., shortly after the miners disbursed,

the two guard trucks returned down Slab Fork Hollow Road, flanking the

Deskins pickup trucks driven by Hensley and York. Kopplin, in the Ford

Bronco, led the convoy and was followed by York and then Hensley (JA

435). The Lexan-reinforced white Chevrolet Club Cab driven by

Richardson was at the end (JA 435).

As the trucks approached the picket area, they were hit by

numerous rocks. Contemporaneously with the rock throwing, the

occupants of the trucks heard gunshots (JA 480). York’s truck suddenly

speeded up, veered off the road and came to rest in a ditch on the left side

of the road (JA 455). It later was discovered that a bullet had entered his

truck's back window and struck York in the back of the head, killing him

instantly (JA 456; 522; 601).

A federal grand jury indicted Lowe, together with seven fellow

union members, in a four count indictment returned on November 2, 1993

(JA 13). All of the counts were based upon alleged violations of 18

U.S.C. § 33, which provides for penalties of up to twenty years in prison,

or the death penalty, 18 U.S.C. § 34, for anyone who intentionally or

recklessly “damages, disables [or] destroys any motor vehicle which is

used, operated, or employed in interstate or foreign commerce... or ...

disables or incapacitates any driver . . .of the motor vehicle.” Shortly

before trial, the federal charges against Lowe’ s seven co-Defendants were

dismissed pursuant to their agreements to enter guilty pleas in state court

to a single count information charging them with destruction of property,

and to testify at Lowe’s trial. They each received a sentence of 120 days

in jail and a $500.00 fine, together with court costs and restitution (JA

298; 364-65; 392-94),

Petitioner Lowe was tried before a jury on June 13-24, 1994 (JA

194). Beginning with a pre-trial motion to dismiss (JA 36-49), Petitioner

challenged the Government’s assertion that the vehicles involved in the

July 22 incident were “used, operated or employed in interstate commerce.

. in the transportation of passengers, passengers and property, or

property or cargo” as required by 18 U.S.C. §§ 31 and 33. The district

?The first two counts, a conspiracy charge and a substantive count,

charged all eight defendants with damaging motor vehicles Lag. seb ee have been

“used, operated and employed in interstate commerce,’

pres fc ahetig year) tammicl apdaicen abe en gh ‘een -19). "Count Il

charged Petitioner Lowe alone with hea §3 Ls eat ome ie York,

allegedly the driver of a vehicle “used, in interstate

commerce” JA 20). Count IV eget on with a firearm in the

the Section 33 offense, in violation of 18 U.S ‘onally balled York (JA

21). The Government never contended that Lowe had intenti

but alleged that he had fired shots in the direction of the vehicles, with reckless

disregard for human life (JA 63; 170; 263; 962).

itesicenisis:badbnalictes cata

court repeatedly expressed concern with the Government’s theory that this

jurisdictional predicate was established by evidence that the vehicles were

being used for the “transportation of providers of services” (JA 905-06;

911-912; 942-43).

Foliowing extensive arguments on this issue, the district court

ultimately submitted the case to the jury on a theory it fashioned itself.

Under the instructions drafted by the court on the last day of trial, the

jurisdictional prerequisite could be established by evidence that:

[t]he trucks being driven by ernployees of Elite Security

and Deskins Contracting were used or employed by Arch

of West Virginia in connection with and in furtherance

of its business of distributing coal mined in West

Virginia to consumers in another state, or used or

employed by Elite Security in connection with and in the

course of conducting its business of providing security

services outside the State of North Carolina (JA 1031-

32).

After three full days of deliberations, the jury convicted Lowe on

all counts. He was sentenced to seventy-one (71) months imprisonment

on the Section 33 counts, with a consecutive sixty (60) month term on the

firearm charge, for a total of nearly eleven years imprisonment, ——

with a fine and restitution (JA 176-77).

The Court of Appeals for the Fourth Circuit affirmed, with one

judge dissenting, and subsequently denied Lowe’s Petition for Rehearing

and Suggestion for Rehearing En Banc.

ARGUMENT

I. THE FOURTH CIRCUIT’S OPINION EXPANDS

THE SCOPE OF § 33 FAR BEYOND THE

CAREFUL LIMITS DRAWN BY CONGRESS

The Fourth Circuit’s affirmance of Lowe’s conviction marks the

first me that § 33 -- a statute clearly designed to punish violence against

vehicles engaged in the interstate, commercial transportation of

passengers, property or cargo -- has been used to police an essentially

local labor dispute, based upon damage to a vehicle and driver engaged in

purely intrastate activities. As the dissenting judge observed:

An employee of a West Virginia company, driving a

truck, without passengers or cargo, that was titled in

West Virginia and owned by his West Virginia

employer, was fatally shot as he was leaving a West

Virginia coal mine to return to his employer's West

Virginia shop. Principal responsibility for this tragedy

was attributed to Petitioner Jerry Dale Lowe. But Lowe

was not charged with murder, manslaughter, felonious

wounding, assault, battery, or any other seemingly

appropriate state law offense. Instead, he was charged

with, and convicted of, violating a federal statute aimed

at punishing those who damage commercial vehicles

used in interstate commerce.

United States v. Lowe, 65 F.3d 1137, 1148 (4th Cir. 1995, Motz,

dissenting); App-21.

The structure of the statute at issue is relatively simple. Section

33 itself provides penalties for attacks on “any motor vehicle which is

used, operated, or employed in interstate or foreign commerce.” Section

31 defines “motor vehicle” as a vehicle “used for commercial purposes on

the highways in the transportation of passengers, passengers and

property, or property or cargo,” and defines the phrase “used for

commercial purposes,” as meaning “the carriage of persons or property

. . . directly or indirectly in connection with any business, or other

undertaking intended for profit.”

Neither of the two requisites of the statute were satisfied in this

case. The vehicle in which York was killed was neither “used, operated,

or employed in interstate or foreign commerce,” nor used “in the

transportation of passengers, ... property or cargo.”

Nevertheless, the Court of Appeals for the Fourth Circuit upheld

Lowe’s conviction, over the dissent of Judge Motz, ruling that “[a]ll the

statute requires is that .. vehicles must be used in connection with or in

furtherance of the interstate market activities of the entities operating or

employing the vehicles.” Lowe, supra at 1147; App-18. The Court of

Appeals also ruled that the statutory requirement that the vehicle in which

York was killed be used “in the transportation of passengers, passengers

and property, or property or cargo” was satisfied because York himself;

the driver and sole occupant of the vehicle, was a “passenger.”

The Fourth Circuit’s construction of the statute is unprecedented,

and ignores both the language and the legislative history of § 33. As

Judge Motz’s dissent notes, the opinion employs a carefully and narrowly

drawn statute to extend federal criminal jurisdiction over “every vehicle

owned by a person or entity engaged in interstate commerce, no matter

how confined the use of the vehicle, because conceivably every such

vehicle somehow ‘furthers’ the interstate market activities of its owner.”

Id. at 1150; App-25. The Court’s opinion also transforms § 33 into a

powerful tool for federal policing of local labor disputes, contrary to the

expressed intent of Congress. The nature and scope of the Court of

Appeals’ error justifies review by this Court.

A. THE FOURTH CIRCUIT OPINION NULLIFIES

CONGRESS’ RESTRICTION OF SECTION 33 TO VEHICLES

USED IN THE COMMERCIAL TRANSPORTATION

OF PASSENGERS, PROPERTY OR CARGO

In enacting § 33, which punishes attacks on “any motor vehicle

which is used, operated, or employed in interstate or foreign commerce,”

Congress carefully limited the scope of the statute by adopting a

restrictive definition of “motor vehicle.” The statute’s definitional

section, 18 U.S.C. § 31, provides:

‘Motor vehicle’ means every description of carriage or

other contrivance propelled or drawn by mechanical

power and used for commercial purposes on the

highways in the transportation of passengers,

passengers and property, or property or cargo.

‘Used for commercial purposes’ means the carriage of

persons or property for any fare, fee, rate, charge or

other consideration, or directly or indirectly in

connection with any business, or other undertaking

intended for profit. 18 U.S.C. § 31 (emphasis added).

Thus, the statutory language clearly requires that the vehicle at

issue be used commercially to transport “passengers, passengers and

property, or property or cargo.” The legislative history of § 33 confirms

this limited scope of the statute. The Fourth Circuit’s opinion effectively

nullifies this requirement.

The Court of Appeals did not suggest that any of the vehicles at

issue in this case were used to transport “property or cargo.” The Court

affirmed Petitioner’s conviction on the basis that “each of the vehicles was

used ‘in the transportation of passengers” /d. at 1143; App-9. However,

the Deskins vehicles, including the one in which York was killed, were

occupied solely by their respective drivers, who were simply returning

from the mine site to the Deskins shop, on their own time.’ The only

occupants of the Elite vehicles were security guards on a local trip to the

mine site “to look over the area to set up security for that evening" (J.A.

43 1-32) and to escort the Deskins vehicles off of the property (J.A. 450,

453). Nevertheless, the Court of Appeals held that all of the vehicles were

being used to “transport passengers”:

The Elite vehicles were used to escort the Deskins

employees from the waste area to a safe point outside the

mine, and the vehicles used by Deskins were used to

transport workers for Deskins from the waste area to a

safe point outside the mine. Thus, the vehicles in the

convoy were "motor vehicles" within the meaning of the

statute.

Lowe, supra at 1143; App-9.

The fallacy of the Court’s decision is most apparent in its

conclusion that the Deskins vehicles were used ‘in the transportation of

passengers.”" As the dissenting judge observed:

It was undisputed that the Deskins vehicles--including

the one containing the victim who was fatally

shot--contained only one person, the driver himself. At

least with regard to the Deskins vehicles then, there

cannot be any claim that any passengers were

transported for any purpose, let alone for commercial

purposes. By definition, drivers are not passengers.

Lowe, supra at 1149 (Motz, dissenting); App-22.

Indeed, the history of § 33 unmistakably demonstrates that the

statute does not apply to vehicles carrying only a driver, with no “property

or cargo.”

The original House Bill which led to the enactment of § 33 in

1956 applied only to attacks or threats against commercial aircraft,

provisions which now are codified in 18 U.S.C. § 32. The corresponding

*Hensley and York, the Deskins employees, were paid on an Noutty

basis. A Deskins manager testified that in “many of the jobs we do, we do w

in places that are pretty far from our shop. So what we do is we pay the

employees from the time they leave the shop until the time return that

evening, A aecgs Heat A. wo) However, Manion Hensley, surviving

Deskins dri without contradiction that he and York were no longer

being paid at ts time of the attack, which occurred on their return from the Arch

site to the nearby shop. (J.A. 483-486).

10

Senate Bill, which was adopted in conference, extended the statute’s

protection to motor vehicles “used [in interstate commerce] for

comumercial purposes on the highways in the transportation of

passengers, or passengers and property.” See H.R.Rep. No. 1979, 84th

Cong., 2d Sess. (1956), reprinted in 1956 US.C.C.A.N. 3145. The

Conference Report emphasized the extraordinarily limited scope of the

statute’s application:

The one issue of concern at the conference was the

interpretation of the scope of the term ‘motor vehicle’ as

defined in the bill. It was agreed that the term ‘motor

vehicle’ means every description of carriage or other

contrivance propelled or drawn by mechanical power and

used for commercial purposes on the highways. Jt does

not extend to motor vehicles, including commercial

motor vehicles, used merely for the transportation of

property, or for personal or private purposes. Conf.

Rep. No. 84-2287, 84th Cong., 2d Sess. (1956),

reprinted in 1956 U.S.C.C.A.N. 3150 (emphasis

added).

The Fourth Circuit’s interpretation of the term “passengers” to

include the driver himself clearly is inconsistent with congressional intent.

The conference report unequivocally states that a vehicle is not used “in

the transportation of passengers, or passengers and property” when it is

“used merely for the transportation of property,” although such a vehicle

necessarily would have a driver. Thus, Congress drew a clear distinction

between “passengers” and drivers.

The sole amendment to the statute since its enactment in 1956

reinforces this distinction. In 1984, Congress expanded the definition of

motor vehicle to include a vehicle used for commercial purposes on the

highways in the transportation of “property or cargo.” The Senate Report

on the bill noted that “[t]he phrase ‘property or cargo’ is added to cover

trucks,” and explained the need for the amendment:

Present federal law, 18 U.S.C. 33, covers the destruction

or damage of motor vehicles if done with the intent to

endanger the safety of anyone on board. The term motor

vehicle is defined as a conveyance used on the highways

for commercial purposes in the ‘transportation of

passengers or passengers and property.’ Thus, section

33 does not reach the destruction or damage of a truck

1]

which carriers only cargo, not passengers. Another

statute proscribes the actual or attempted destruction of

cargo moving in interstate commerce, but is limited to

the cargo itself, not the truck. Thus, there is no federal

statute proscribing, for example, the shooting at a

truck and damaging it with intent to hurt or kill the

driver. S. Rep. No. 225, 98th Cong., Ist Sess. (1983)

reprinted in 1984 U.S.C.C.A.N. 3182, 3500 (emphasis

added).

Again, the intent of Congress to exclude drivers from the

definition of passengers is unmistakable. The drafters of the 1984

amendment added "property or cargo” precisely because the existing

statute did not reach “the destruction or damage of a truck which carriers

only cargo, not passengers,” and thus did not proscribe “the shooting at

a truck and damaging it with intent to hurt or kill the driver.” The Fourth

Circuit’s interpretation, expanding the definition of “passengers” to

include the driver himself, renders the 1984 amendment superfluous.

The Court of Appeals’ application of the statute to cover the Elite

vehicles is no more persuasive. As the dissent emphasized:

[A]lthough the Elite vehicles contained several Elite

employees, there was no evidence that they were ever

used to provide commercial transportation for Deskins

employees or anyone else. The legislative history of

§ 33 strongly suggests that it was not intended to apply

to vehicles in which employees of the vehicle owner were

the only passengers, i.e., that this does not constitute the

"transportation of passengers" for “commercial

purposes."

Lowe, supra at 1149 (Motz, dissenting); App-22.

B. THE FOURTH CIRCUIT RULING NULLIFIES

CONGRESS’ RESTRICTION OF SECTION 33

TO VEHICLES “USED, OPERATED OR

EMPLOYED ”_« INTERSTATE COMMERCE”

This Court has ruled that Congress may regulate under its

commerce powcr in three broad categories. First, it may regulate the use

of the channels of interstate commerce. Second, Congress may regulate

and protect the instrumentalities of interstate commerce, or persons or

12

things “in” interstate commerce, even though the threat may come only

from intrastate activities. Third, Congress may regulate those activities

having a substantial relation to interstate commerce--those activities that

“substantially affect interstate commerce.” United States v. Lopez, _

U.S. __, 115 S.Ct. 1624, 1629-1630, 131 L.Ed.2d 626 (1995); Perez

v. United States, 402 U.S. 146, 150, 91 S. Ct. 1357, 1359-60, 28 L. Ed.

2d 686 (1971) (citations omitted).

As the Court repeatedly has emphasized, Congress is aware of the

"distinction between legislation limited to activities ‘in commerce’ and an

assertion of its full Commerce Clause power so as to cover all activity

substantially affecting interstate commerce." United States v. American

Building Maintenance Industries, 422 U.S. 271, 280, 95 $.Ct. 2150, 45

L.Ed.2d 177 (1975) (emphasis added).

A statutory requirement that an activity ‘affect commerce’

indicates a desire by Congress to exercise all power conferred by the

Commerce Clause. See Russell v. United States, 471 U.S. 858, 859, 105

S. Ct. 2455, 85 L. Ed. 2d 829 (1985) (using an explosive device to

maliciously damage and destroy property used in an activity affecting

interstate commerce); Scarborough v. United States, 431 U.S. 563,

571-72, 97 S. Ct. 1963, 52 L. Ed. 2d 582 (1977) (possession by a felon

of a firearm "in commerce or affecting commerce"); National Labor

Relations Board v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S. Ct.

312, 9 L. Ed. 2d 279 (1963) (National Labor Relations Act, prohibiting

any unfair labor practice “affecting commerce”). However, Congress

historically has employed the term "in commerce" much more narrowly

than the phrase "affecting interstate commerce", with the knowledge that

this Court has “drawn a sharp distinction between activities and the flow

of interstate commerce and intrastate activities that affect interstate

commerce." American Building Maintenance Industries, supra, 422

U.S. at 280.

Both the statutory language and legislative history demonstrate

that, in enacting § 33, Congress deliberately chose not to exercise its full

constitutional power to regulate activities “affecting interstate commerce.”

Congress carefully limited application of § 33 to attacks on vehicles

“used, operated, or employed in interstate or foreign commerce,” rejecting

the broad scope of laws such as the federal arson statute, which applies to

any vehicles "used in interstate or foreign commerce or in any activity

affecting interstate or foreign commerce," 18 U.S.C. § 844(i).

13

The phrase "in commerce" is a much more restrictive

jurisdictional requirement than the phrase "affecting interstate commerce,”

and denotes “only persons or activities within the flow of interstate

commerce--the practical, economic continuity in the generation of goods

and services for interstate markets and their transport and distribution to

the consumer." American Building Maintenance Industries, supra, 422

U.S. at 276 (citations omitted).

Certainly, "Congress knew the significance and meaning of the

language it employed." Barrett v. United States, 423 U.S. 212 , 216; 96

S.Ct. 498; 46 L.Ed.2d 450 (1976). However, the Fourth Circuit’s

opinion obliterates the distinctions drawn by Congress, holding that the

statutory requirement is met so long as the vehicles are “used in

connection with or in furtherance of the interstate market activities of the

entities operating or employing the vehicles”

Lowe, supra at 1148; App-19.

The vehicles at issue here were clearly used in interstate

commerce. Arch was engaged in the distribution of coal

in the interstate market and Arch employed two

companies, Elite and Deskins, each of which regularly

sold security or environmental services in the interstate

market. The vehicles in the convoy were used to further

‘The origin of the statutory phrase “used a eae.

interstate or foreign commerce” also is illustrative. Thee only

two other sections of the code, both of which are clear Lanted to isles whic

are instrumentalities of interstate commerce. 18 U.S. h baaye ogy sive with

§ § 33 in 1956, provides for federal prosecution of anyone who “sets ¢ to,

amages, destroys, disables, redress . any civil aircraft used, operated, or

employed in interstate, overseas, or oreign air air commerce.” Sections 33 and 32

adopted the of 18 usc § 1992, which authorizes prosecution of

anyone who “ derails, disables, or wrecks any train, engine, ~~ che

or car used, mom Senge ed in interstate or foreign commerce

railroad.” H.R. Rep. No. 84-1979, 84th Cong., 2d Sess. (1956), re, Ac hey

identifying § 42 os 3145. od Peres v. United a. supra, ane et

as an example of Congress exercise of on for

‘protectin of the eens interstate commerce” ).

urther, wings of interstate “transportation Sef gen ont

passengers and property, or property or car, ed in statute’s

definition of motor vehicle is considerably patower ih Soope than “interstate

commerce.” In fact, the original definition of “interstate commerce” contained in

18 U.S.C. § 10 described it as “transportation between one State . . .and another

State.” In 948, this definition was amended to substitute the word " commerce”

- ad. ion.” Ch 645, § 1, 62 Stat. 686. The revisor’s note reveals that

was intended ho avid the rower connotation ofthe word

Seite since ‘commerce’ obviously inc more “transportation”

(citing H.R. Rep. 304, 80th Congress, 1948). Nevertheless, in g § 33

eight years later, Congress deliberately used the narrower concept of interstate

transportation.

14

the distribution of Arch’s coal to interstate markets:

indeed, without the assistance of Elite and Deskins, it is

likely the Arch mine would have had to cease its

Operations permanently. Furthermore, the vehicles were

used in furtherance of Elite’s business of furnishing

security services in the interstate market. In short, we

have no difficulty concluding the vehicles in the convoy

were used in interstate commerce at the time of the

attack.

Id. at 1143; App-9.

The jury instructions in this case suffer from the same defect.

The jury was informed that “the interstate commerce requirement may be

satisfied if the government has proved . . . that the trucks being driven by

employees of Elite Security and Deskins Contracting were used or

employed by Arch of West Virginia in connection with and in furtherance

of its business of distributing coal mined in West Virginia to consumers

in another state, or used or employed by Elite Security in connection with

and in the course of conducting its business of providing security services

outside the State of North Carolina” (JA 1031-1032).

The Court of Appeals’ analysis effectively transforms the narrow

statutory requirement that the vehicles be “used in” interstate commerce,

into the broad requirement that the use of the vehicles be “in connection

with and in furtherance of the interstate market activities” of some entity.

The decision, as well as the jury instructions in the case, improperly

focuses on the interstate nature of the general business operations of Arch

and Elite Security, without requiring that the vehicles themselves have

some interstate nexus. As the dissent emphasized:

No court has ever endorsed such a broad reading of § 33

and for good reason. The plain language of the statute

clearly provides to the contrary. . . [OJnly if a person

damages a "motor vehicle which is used, operated, or

employed in interstate ... commerce” is his conduct

forbidden by § 33. Thus, the vehicles themselves must

have some connection to interstate commerce. That the

owners of the vehicles, Arch and Elite, were engaged

generally in interstate activities is wholly irrelevant.

Lowe, supra at 1149(Motz, dissenting); App-23.

This same error led two Courts of Appeals to reverse convictions

under the federal arson statute, 18 U.S.C. §844(i), even though that

15

statute applies more broadly to any property or vehicles “used in any

activity affecting interstate commerce.”

In United States v. Monholland, 607 F.2d 1311 (10th Cir. 1979),

the court held that proof of a conspiracy to destroy a vehicle used by a

state judge to drive from home to court did not establish a violation of

§ 844(i), even assuming the judge’s work was an activity affecting

interstate commerce:

[T]Jhe function of the truck is to get the judge back and

forth, and if the truck fails he would find some other

means to accomplish the trip. We say, then, that the

truck is wholly immaterial as far as any commerce is

concerned even if we assume that there is a commerce

quality about what the judge does after he gets to court.

. Since it is divorced from the activity carried on in

court, there is no legal relationship whereby one can say

that the truck affects commerce.

Similarly, in United States v. Voss, 787 F.2d 383 (8th Cir. 1986),

the court reversed a realtor’s conviction for burning a commercial

property she owned, because the jury instructions permitted the interstate

commerce nexus to be satisfied by proof that the realtor had purchased

insurance in interstate commerce. The Eighth Circuit held that “the

instruction was improper because it requires a nexus only between

interstate commerce and the owner of the building, not the building itself...

as is required by the statute,” 787 F.2d at 396.

As the district court in this case repeatedly observed, the trucks

driven by Elite and Deskins employees were not engaged in any type of

interstate commerce:

[W]e don't have that easy situation where there is a cargo

being shipped, and the question is how do you conclude

here that this event is somehow involving these motor

vehicles as being used, operated, or employed in

interstate commerce. What is it that they are doing that

is in interstate commerce at this time? ... How are they to

be deemed to be used, operated, or employed in

interstate commerce? We don't have any product that we

see that they are shipping out-of-state. We don't see a

link with some other aspect of commerce that is

interstate, other than the fact that we know that Arch is

engaged in interstate commerce, Elite is engaged in

16

interstate commerce, and even Deskins appears to be

engaged in interstate commerce.

At the particular time, however, the vehicles are on what

seems to be a purely intrastate trip... But what is it that

takes that out of that category of intrastate and puts it

into an interstate character, except for the fact that Arch

is engaged in the interstate business of shipping coal that

is produced, and Elite is engaged in the interstate

business of providing security services, and then again

possibly Deskins is, too? Other than the mere fact that

they are engaged in interstate commerce, what is the

interstate commerce link? Is there any?"

** *

[I]t seems to me as though there isn't any evidence in the

case that the motor vehicles insofar as they were being

operated by Deskins, if one looks to that factor alone,

were being used, operated, or employed in interstate

commerce on that day. All we have about Deskins is

that its business was conducted in both West Virginia

and Kentucky. Nothing else is said about involvement

of these motor vehicles in any interstate aspect of the

Deskins business... J don't recall any evidence that ever

indicated that those motor vehicles of Deskins were

themselves used or operated or employed in interstate

commerce. (J.A.912, 914, 951) (emphasis added).

Indeed, as the district court noted, the record in this case contains

no evidence that any of the vehicles were being used in interstate

commerce at the time of the incident. The two guard vehicles were being

used by Elite Security on a purely local trip to the mine site “to look over

the area to set up security for that evening” and to escort the Deskins

vehicles off of the property. The Deskins vehicles were being used by

Hensley and York solely to return from the mine site to their nearby shop.

These uses of the vehicles may have “furthered” the interstate activities

of Arch’ and Elite, as the Fourth Circuit held, and it is clear that Congress

*The Fourth Circuit’s opinion states that the work done by the Deskins

contractors was to the continuation of business by Arch of West

Virginia, because Arch had Ry an er a citation for a violation of the

environmental laws, which could have led to the closing of the Ruffner Mine ...

[and] without the assistance of Elite and Deskins, it 1s likely that Arch mine

Nag yn ne ee sie pore .” Lowe, supra at 1139, 1143;

App-1, 9. In fact, the evidence showed only that Arch had received “either a

17

has the power to apply the statute to uses of vehicles which “substantially

affect interstate commerce,” Lopez, supra, at 1630. However, it is

equally clear that Congress deliberately chose not to adopt such an

expansive application of § 33. By limiting the scope of § 33 to “vehicles

in interstate commerce,” Congress deliberately confined the statute to

vehicles actually "within the flow of interstate commerce--the practical,

economic continuity in the generation of goods and services for interstate

markets and their transport and distribution to the consumer." American

Building Maintenance Industries, supra, 422 U.S. at 276.

As Judge Motz’s dissent warns, the Fourth Circuit’s opinion

employs a carefully and narrowly drawn statute to extend federal criminal

jurisdiction over “every vehicle owned by a person or entity engaged in

interstate commerce, no matter how confined the use of the vehicle,

because conceivably every such vehicle somehow ‘furthers’ the interstate

market activities of its owner.”

Lowe, supra at 1150 (Motz, dissenting); App-25.

C. THE FOURTH CIRCUIT OPINION ‘

TRANSFORMS SECTION 33 INTO A POWERFUL

TOOL FOR FEDERAL POLICING OF LOCAL

LABOR DISPUTES, CONTRARY TO

THE EXPRESSED INTENT OF CONGRESS

The Senate report accompanying the 1984 amendment indicates

a congressional intent to apply § 33 when labor disputes result in violent

attacks on channels or instruments of interstate commerce, such as trucks

hauling interstate cargo. Indeed, the three of the four reported decisions

by Courts of Appeals affirming convictions under § 33 arose from attacks

on vehicles during labor strikes. United States v. Lambert, 994 F.2d

1088 (4th Cir. 1993) (attempt to disable Greyhound bus during strike);

United States v. Daniels, 948 F.2d 1033 (6th Cir. 1991) (same); United

States v. Heightland, 865 F.2d 94 (6th Cir. 1989) (attack by striking coal

miners on truck transporting coal in first phase of interstate shipment).

(The fourth such decision resulted from a drunken defendant's unfortunate

warning Or ... a Citation to clean the sediment pond” and that the mine was subject

to closure if it received three citations for the same condition in one year (A. 513-

14). At the time of the shooting, the mine already was closed due to the strike.

Even if a closure order might have been issued before the strike ended, which was

not proven, there was no absolutely no evidence that such a closure would be

permanent.

ee Ts ee

encounter with a Greyhound bus and a friend who urged: "Shoot it! Shoot

it!" United States v. Kurka, 818 F.2d 1427, 1431 (9th Cir.1987)).

However, in all four of these cases, the vehicles indisputably were

in use, at the time of the attacks, in the “transportation of passengers,

passengers and property, or property or cargo” on an interstate journey.

The language and history of § 33 provide no support for expanding the

statute’s reach to include other categories of labor violence.

In United States v. Enmons, 410 U.S. 396, 93 S.Ct. 1007, 35

L.Ed.2d 379 (1973), this Court rejected a broad interpretation of the

Hobbs Act urged by the government, which would have applied the

federal extortion statute to violence incidental to a union strike for higher

wages. The Court's analysis in that case is equally applicable here:

Even if the language and history of the Act were less

clear than we have found them to be, the Act could not

properly be expanded as the Government suggests -- for

two related reasons. First, this being a criminal statute,

it must be strictly construed, and any ambiguity must be

resolved in favor of lenity. Secondly, it would require

statutory language much more explicit than that before

us here to lead to the conclusion that Congress intended

to put the Federal Government in the business of

policing the orderly conduct of strikes. Neither the

language of the Hobbs Act nor its legislative history can

justify the conclusion that Congress intended to work

such an extraordinary change in federal labor law or

such an unprecedented incursion into the criminal

jurisdiction of the States. Jd, 410 U.S. at 399-400

(citations and footnotes omitted).

In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d

488 (1971), the Court again stressed the necessity for a clear statement of

congressional intent before a criminal statute will be held to have

expanded federal jurisdiction into an area traditionally reserved to the

states:

[UJnless Congress conveys its purpose clearly, it will not

be deemed to have significantly changed the federal-state

balance. Congress has traditionally been reluctant to

define as a federal crime conduct readily denounced as

criminal by the States. [W]e will not be quick to assume

that Congress has meant to effect a significant change in

19

the sensitive relation between federal and state criminal

jurisdiction. In traditionally sensitive areas, such as

legislation affecting the federal balance, the requirement

of clear statement assures that the legislature has in fact

faced, and intended to bring into issue, the critical

matters involved in the judicial decision... In the

instant case, the broad construction urged by the

Government renders traditionally local criminal conduct

a matter for federal enforcement and would also involve

a substantial extension of federal police resources.

Absent proof of some interstate commerce nexus in each

case, § 1202(a) dramatically intrudes upon traditional

state criminal jurisdiction. As in Rewis, the legislative

- history provides scanty basis for concluding that

Congress faced these serious questions and meant to

affect the federal-state balance in the way now claimed

by the Government. Id. at 339 (citations omitted)

(emphasis added).°

In Enmons, the Court also emphasized another factor equally

applicable to this case:

[N]ot until the indictments were returned in 1970 in this

and several other cases has the Government even sought

*It appears that the Fourth Circuit have been influenced by a

different concept of federal-state balance. In ge conviction in a later,

unrelated case which also originated in Logan County, West Virginia, the Court

expressed the following view of the efficacy of state law enforcement efforts in

the county:

"Froin the Phil cinchisistinsice ts his Gals, aia Wilh tiie

recently decided opinion in United States v. Lowe, 65 F.3d

1137 (4th Cir. 1995) [the present case], in the absence of

prosecution by local and state authorities, one has to ponder

whether the felonious killing of another is a criminal offense

in Logan County, West Virginia.

United States v. Gullett, F.3d, 1996 US. . LEXIS 2027, slip

opinion at 30, n.11 (4th Cir.T996). Both members of the majority in this case

also sat on the Gullett case, and the two opinions were authored by the same

judge. However, there is no support in the record for the Court’s apparent

that state officials were unwilling or unable to pro: Petitioner or

the other miners. The investigation into the death of Eddie York was a joint

=e the State of West Virginia and the FBI. Corporal G. R. Johnson of the

West Virginia Division of Public Safety, examined the site of the sh on July

night at the tat police jor office at Logan, West Virginia (JA 940, 376-78), Special

at the state at est Virgima 4 ,

Brad Ho brt of the FBI also was present JA 43 "saul wees 00 the ovens

of the shooting the following morning (JA 569). None of the witnesses

suggested that the state itself would not have pursued the prosecution, if the

federal authorities had not taken control of the investigation.

20

to prosecute under the Hobbs Act actual or threatened

violence employed to secure a union contract "calling for

higher wages and other monetary benefit." Yet,

throughout this period, the Nation has witnessed

countless economic strikes, often unfortunately

punctuated by violence. It is unlikely that if Congress

had indeed wrought such a major expansion of federal

criminal jurisdiction in enacting the Hobbs Act, its

action would have so long passed unobserved. /d. at

410 (citation and footnotes omitted).

Since the Enmons decision, the nation has continued to witness

“countless economic strikes, often unfortunately punctuated by violence,”

often against employers engaged in interstate commerce. However, there

is no reason to believe that Congress intended narrowly tailored statutes

such as § 33 to provide a broad basis for federal intervention in such

disputes. In fact, Congress repeatedly has resisted efforts to overturn the

Enmons decision by amending the Hobbs Act to permit its application to

violence in labor disputes, for fear that it would represent an unwarranted

federal intrusion into sensitive areas of labor relations traditionally left to

the states.

Congressional sentiment on this issue was expressed in a lengthy

Senate debate in 1986 when supporters of the proposed Hobbs Act

amendment unsuccessfully attempted to engineer a floor vote. 32 Cong.

Rec. $4337-01 (daily ed. April 16, 1986).’ Proponents of the amendment

decried the frequency of strike-related violence, including a recent coal

strike in West Virginia which reportedly resulted in "745 windshields

broken, 1677 truck tires destroyed, 178 coal trucks and other company

vehicles burned or destroyed ... and | person, a truck driver, murdered by

ambush by 27 high powered rifle shots shot through the cab of his truck.”

Id. (remarks of Senator Grassley).

Senator Dole sought to assure his fellow senators that “this bill

will not enable Federal law enforcement to weigh in against unions during

labor negotiations every time a rock or bottle is thrown by a union

"In United States v. Enmons, supra, a federal extortion prosecution for

violent conduct during the course of a labor dispute, the Court held that the

Hobbs Act did not reach all violence, but only violence that is —— in the

ne Aon) Hoon Varmint rename tiched as bpdbeee px

to obtain. Under this interpretation, the Hobbs Act does nei reach the actual or

threatened use of violence directed at obtaining a legitimate labor objective or

reer mic benefits that can otherwise be lawfully obtained by collective

argaining.

21

member.” Nevertheless, opponents of the amendment repeatedly asserted

that federal prosecution of picket line violence, except in the rarest of

circumstances, would “unnecessarily expand Federal jurisdiction into an

area which has traditionally been effectively covered by State and local

law” (remarks of Senator Durenberger).*®

Congress’ intent to restrict application of § 33 to vehicles directly

engaged in the transportation of passengers and cargo on interstate

journeys is clear. Equally unmistakable is Congress’ historical reluctance

to involve the federal government in prosecuting strike-related violence,

except in cases involving particularly strong federal interests, such as the

“definite federal interest” served by the limited scope of § 33 “in keeping

open the channels of interstate commerce.” There is no basis whatsoever

to believe that Congress intended § 33 to represent the “major expansion

of federal criminal jurisdiction,” Enmons, supra, required to justify the

prosecution in this case.

The Fourth Circuit’s opinion, however, effects just such a “major

expansion of federal criminal jurisdiction,” and would permit federal

prosecution of most local labor disputes. In rejecting the proposed Hobbs

Act amendment, Congress expressed its unwillingness to “enable Federal

law enforcement to weigh in against unions during labor negotiations

every time a rock or bottle is thrown by a union member.” See Remarks

of Senator Dole, supra. However, the Fourth Circuit’s ruling would

*See remarks of Senator Simon (no “necessity for the Federal

htt to move in La gor thors fev rege Ber wena of a

pecter (state prosecutors Z uate es... to € Cases involvin

union Wolene”), remarks of Senator Gorton ("battery, assault, and willful

destruction of during a labor dispute ... are crimes punishable

under state law...._ I do not believe a convincing case has ot yoo

such a major change in Federal-State jurisdiction"), remarks of Senator Leahy

Federal prosecutors to handle picket line violence"); remarks of Senator Kenne

("bill is unnecessary because is no single ‘waive of labor violence’ that might

justify this vast expansion of Federal re eer nancy ew ads remarks of Senator

Durenberger (“I do not believe that the Federal Government should be in the

business of policing picket lines, ... [T]he intervention of the Federal Government

into union protests can greatly interfere with the collective bargaining process"),

remarks of Senator me po (amendment unnecessary since targeted

activities are under state law; amendment “is si a way to

extend Federal jurisdiction into local affairs. wenden) ners rH I and U.S.

attorneys to get involved in labor management-relations at the local level”).

Senator Kennedy added "from a union busting perspective, this amendment

makes a lot of sense. Bring in Federal law enforcement, with the threat of 20

years rape and $10,000 in fines, and union busting mercenaries will have a field

day." He also expressed concern that, although violence was frveans! irene by

security guards hired by coal companies, the proposed would

penalize only union violence.

22

permit just that, so long as the rock or bottle is thrown “ in, upon, or in

proximity to, any motor vehicle ... or in, upon, or in proximity to any

garage, terminal, structure, supply, or facility used in the operation of, or

in support of the operation of, [a] vehicle,” 18 U.S.C. §33, if the vehicle’s

use somehow “furthers” the interests of a company engaged in interstate

commerce. The Court of Appeals’ ruling in this case establishes a

disturbing and unjustified precedent, which this Court should not allow to

stand.

II. THE EVIDENCE IS INSUFFICIENT TO

SUSTAIN PETITIONER’S CONVICTION

The Government’s:identification of Lowe as the individual who

fired the fatal shot was based upon a series of inferences from

circumstantial evidence:

(a) O’Neil, the government’s ballistics expert, established

a geographic “cone” from which he testified the shot

must have originated, based upon assumptions regarding

the exact location of York’s truck (and his body within

it) at the instant he was shot, as well as the precise entry

point of the bullet that shattered his truck’s windshield;

(b) testimony by Lowe and three of his co-defendants

regarding their respective positions at the time of the

shooting, and the general locations of the other nine

identified picketers present, suggested (with varying

degrees of certainty) that Lowe was the only one of the

thirteen identified individuals who was within the “cone”

at the time of the shots; and

(c) Lowe admitted having possessed, for a short time some

days prior to the shooting, the Colt Trooper Mark III

which was stipulated to be the weapon which fired the

fatal shot.

Petitioner’s motions for judgment of acquittal, based upon the

insufficiency of the evidence to support the multiple assumptions and

inferences required by the Government’s theory, were denied by the

district court (JA 938), and the Court of Appeals affirmed this ruling. In

so ruling, the Fourth Circuit primarily relied on three factors: (1) Lowe’s

admitted possession -- a week or two prior to the shooting -- of the

weapon which killed York; (2) O'Neil's testimony establishing a

23

cone-shaped area from which the fatal shot originated; (3) “the

circumstantial evidence . . . that the shot came from the creek side of the

road in the area Lowe positioned himself for the ambush and the discovery

of the Budweiser Light beer can within the conical area described by

O'Neil, placed Lowe in the area described by O'Neil.” United States v.

Lowe, supra at 1141-42; App-6. However, the factors cited by the court

are insufficient to enable a rationale jury to find Petitioner guilty beyond

a reasonable doubt.

A critical element of the government’s case was established

through the testimony of Special Agent John O'Neil, who testified that his

reconstruction of the shooting established a cone-shaped geographic area

from which the fatal shot must have originated. According to the

government’s theory, Petitioner alone was present on the “creek side” of

Slab Fork Hollow Road, within the zone identified by O’Neil, while the

other miners threw rocks either from the other side of the road or from a

separate access road to the mine, id., 65 F.3d at 1139-41; App-2, 4.

O’Neil reached his conclusion by fastening a piece of string to

three fixed reference points representing the path of the bullet, based

upon: (a) the medical examiner’s testimony regarding the path of the

bullet through York’s head, (b) opinions of the investigating officers

regarding the location of the truck at the instant of the shot, and (c)

O’Neil’s own conclusion as to the precise point at which the bullet entered

the rear windshield of York’s truck. He then extended the string

backward, using it to identify a cone-shaped area from which, he testified,

the shot must have originated (JA 680-81).

O'Neil's theory was based on assumptions and inferences

unsupported by competent evidence. For example, one of the three critical

points used by O'Neil in determining the trajectory of the bullet was the

medical examiner’s "placing of the position of the head of the victim

inside the truck cab" (JA 645, 722). However, the medical examiner’s

testimony was based upon the assumption that he was seated upright,

looking straight ahead (JA 719-22). No witness actually saw York when

the bullet hit, and the medical examiner's assumption regarding his

position was pure speculation. Indeed, the driver of the other Deskins

vehicle, Marion Hensley, testified that when the strikers began throwing

rocks, he leaned in towards the middle of his truck cab to avoid the rocks

24

(JA 479-81). A similar reaction by Mr. York would invalidate Agent

O'Neil's theory.”

Another assumption critical to O'Neil's theory was the point,

within a two inch range, at which the bullet entered the rear windshield of

York's vehicle (JA 681). However, the bullet shattered the windshield,

producing a hole in the tempered glass large enough, as the district court

observed, to make it possible that the bullet had “come from the sky"

without further fixed reference points (JA 674). The entire windshield had

been removed before O’Neil or the defense expert were able to examine

it, and O’Neil’s conclusion was based solely upon his viewing of a

photograph of the windshield taken shortly after the shooting (JA 719).

The photograph, he testified, shows a "white residue" on part of the

remaining glass, which he concluded was caused by the bullet striking that

exact area of the windshield. (JA 637-38). However, the "residue" was

never subjected to any scientific testing, and O'Neil's entire knowledge of

its nature was based upon viewing the photograph. (JA 638, 640-44).

Certainly, a whitish area vaguely apparent a photograph could have been

caused by any number of unrelated sources. O'Neil's conclusion on this

critical issue fails to satisfy the minimum standards for admissibility of

scientific or expert evidence. See Daubert v. Merrell Dow

Pharmaceuticals, Inc., ---- U.S. ----, 113 S. Ct. 2786, 125 L. Ed.2d 469

(1993); Federal Rules of Evidence, Rule 702.

The defense expert testified that it is "absolutely impossible in

this case to” determine the angle through which the bullet passed through

the glass:

[W]e do not have either a object that is relatively thick

that is in a known fixed position, nor do we have two

objects that are in a fixed position that allows us to

establish an angle. All we have available to us in this

case is a broken out window in the rear of the pickup

truck . . . [W]e don't know . . . the position of the victim's

head at the time of the shooting. We don't have the

second object with the fixed position. . . [W]e don't have

a precise location where the truck was at the time the

shot was fired or the angle of the truck in the roadway at

*O’Neil’s conclusion also is undermined by the testimony of Jerry

McNeeley, one of the security guards in the convoy, who stated that the shots

came from". . over on this side of the road, the same approximate location as

where the rocks had come from" (JA 456, 467) -- i.e., a site where other striking

miners, but not Lowe, were positioned.

25

the time that the shot was fired. So lacking the

information of knowing the position of the victim's head,

the large hole that is in the window, not knowing the

position of the truck in the road or the angle of the truck,

it is impossible to make an accurate determination from

where the bullet was fired (JA 865-67).

The Court of Appeals’ held that a jury properly could conclude

that, at the time of the shooting, Petitioner was located within the cone

shaped area identified by O'Neil as the origin of the shot, relying heavily

upon the presence of a Budweiser beer can (hardly an unusual discovery

in southern West Virginia in mid-summer) at the site. The Court also

noted that “[o}]nly Lowe was known to have been within the area reflected

by this cone.” Lowe, supra, at 1141-42; App-6. However, the trial

testimony was woefully inadequate to support a conclusion that Petitioner

was the only person present within the area identified by O’Neil. Not a

single witness purported to provide a complete listing of all of the

individuals present at the time of the shooting, or of the individuals who

could have been located within the cone shaped area. In fact, most of the

witnesses affirmatively stated that there were other persons present whose

names they either did not know or could not recall. (JA 281, 302, 308,

316, 326-28, 366-67, 370, 380-81, 394-95, 404, 408-09, 538). One of

the witnesses testified that “four or five other miners” were in the same

approximate location as Petitioner (JA 414-15).

In summary, the evidence -- even when viewed in the light most

favorable to the verdict -- establishes simply that Petitioner had

possession of the firearm which fired the fatal shot a week or two prior to

the shooting, and that he was the only person the Government was able to

place near the area from which, according to Agent O'Neil speculative

theory, the shot originated. This evidence was not sufficient to convince

a rational jury of Lowe's guilt beyond a reasonable doubt.

III. THE COURT OF APPEALS IMPROPERLY AFFIRMED

THE DISTRICT COURT’S REFUSAL TO ADMIT EVIDENCE

THAT LOWE NO LONGER HAD POSSESSION OF

THE WEAPON AT THE TIME OF THE SHOOTING

Petitioner unsuccessfully attempted to introduce testimony from

several sources which would have corroborated his own testimony that he

no longer had possession of the Colt revolver on the date of York’s death,

26

a claim which repeatedly was challenged by the government’s theory that

he possessed and used the gun on that day.

Petitioner’s nephew, William Lowe testified that he purchased

the Colt Trooper Mark II (later identified as the weapon with which York

was shot) for $100 from his ex-girlfriend’s brother in Illinois and soon

found out that her father had reported it as stolen (JA 582). When he

came to visit his family in West Virginia in early July of 1993, William

Lowe brought the gun with him (JA 583). He showed his uncle the gun

“a couple of days” following his arrival and told him that he wished to sell

it for $100.00 (JA 584, 812).

Petitioner testified that he asked some of his fellow miners,

including Erskine Holstein, if they were interested in purchasing the gun

(JA 816-18). Holstein confirmed this, testifying that Jerry Lowe had

brought the gun to the picket site looking for a purchaser (JA 94-95).

Petitioner also testified that Jack Starkey, who was named as an

unindicted co-conspirator in this case, purchased the gun (JA 784-85).

However, the district court refused to permit either Petitioner or William

Lowe to testify that, prior to the shooting and thus before any motive for

fabrication arose, William Lowe himself had found a purchaser for the

gun, and had attempted to retrieve it from Petitioner, who replied that it

already had been sold to another person and could not be recovered.

The Court of Appeals held that the statement was not admissible

as a prior consistent statement under F.R.Evid. Rule 801(d)(1)(B), which

provides that a statement is not hearsay if the declarant testifies and the

statement is “consistent with the declarant's testimony and is offered to

rebut an express or implied charge against the declarant of recent

fabrication or improper influence or motive.” Following Fourth Circuit

precedent, the Court held that:

‘proof of prior consistent statements is not admissible

unless and until there has been some impeachment of

the witness.’ Because Lowe attempted to introduce his

prior statement before his testimony was impeached by

the government, his statement to William Lowe was not

admissible under Rule 801(d)(1)(B) during the

cross-examination of William Lowe, and later during his

own direct examination.” Lowe, supra at 1144; App-12

(citations omitted) (emphasis added).

The Fourth Circuit ruling that a prior, express impeachment of

the declarant is a prerequisite for admission of a prior consistent statement

27

under Rule 801(d)(1)(B), is in conflict with the rules of other circuits

permitting such evidence to be introduced in anticipation of impeachment,

where the government’s theory of the case necessarily suggests that the

defense is a recent fabrication.

Neither the language of the rule nor the case law from other

circuits requires that the witness first be specifically impeached prior to

the introduction of the consistent statement. It is enough if, as in this case,

the government suggests through argument, or presentation of its case in

chief, or through cross-examination of witnesses, that the defendant’s

version is a fabrication. See United States v. Casoni, 950 F.2d 893, 904

(3d Cir.1991) (‘The government correctly responds that prior consistent

statements are not limited to stateraents concerning specific

inconsistencies brought out on cross-examination. Rather, there need be

only a suggestion’ that witness consciously altered testimony to allow

prior consistent statement into evidence”); United States v. Gonzalez,

700 F.2d 196, 202 (Sth Cir. 1983) (“Gonzalez offered his wife's

testimony in response to the government's evidence and in anticipation

of the government's inevitable attack on his own testimony. Because the

implication of the government's evidence necessarily was that Gonzalez

had fabricated his defense of lack of criminal intent, Gonzalez should have

been permitted to introduce evidence of his prior consistent statement to

his wife”) (emphasis added). See also, 47 A.L.R.Fed. 639-651 (“While

admissibility thus depends initially on an attack upon a witness’ credibility

in an attempt to show such recent fabrication, the courts have taken a

generous view of the entire trial setting in determining whether there was

sufficient impeachment of a witness to permit evidence of prior consistent

statement to be admitted”).

In this case, the government’s entire theory of the case implied

that Lowe’s claim to have delivered possession of the gun to Starkey prior

to the shooting was a fabrication. Petitioner’s alleged possession of the

gun at the time of the shooting was critical to the government’s case.

In its opening statement, the government claimed that William

Lowe “gave that gun to his uncle and his uncle ... [had] the opportunity,

he had the Colt Trooper” (JA 258). The government presented William

Lowe as a witness and questioned him extensively to establish that he had

given the gun to Petitioner (JA 582-85). On cross-examination, defense

counsel attempted to elicit testimony regarding his unsuccessful attempt

28

to retreive the gun and Petitioner’s statement that it already had been sold

(JA 587-90).'°

On two other occasions, during the direct testimony of Petitioner

himself and during a later appearance by William Lowe as a defense

witness, Petitioner again attempted to introduce his prior consistent

statement to his nephew (JA 785-94, 585-89). Each time, the district

court prohibited the testimony from being admitted.

The Court of Appeals also upheld the district court’s refusal to

admit evidence that Jack Starkey, one of the other miners present at the

time of the shooting, had admitted to federal agents, through his attorney,

that he had purchased the gun from Lowe at least a week before tne

shooting Lowe, supra at 1146; App-16; JA 1165).

In the grand jury investigating York’s death, Starkey had refused

to testify, asserting his fifth amendment privilege agairst self-

incrimination (JA 1153). Sometime later, Lowe approached him and

asked him to turn the gun over to the federal prosecutors (JA 795).

Starkey gav. «se weapon to his attorney, Jack Kessler, who sent it to the

prosecutors, using another attorney as an intermediary to keep his client

from being identified as the weapon’s origin (JA 1159).

Prior to trial, Lowe’s counsel learned that Starkey would assert

his fifth amendment privilege if called to testify (JA 126; 1182-83). The

defense accordingly subpoenaed Kessler, intending to ask him about

admissions Starkey had made, in the presence of third parties, confirming

his possession of the weapon (JA 73).

Government attorneys, alerted by the issuance of the subpoena to

the probability that one of Kessler’s clients was the origin of the Colt,

investigated further and identified Starkey as the most likely suspect (JA

1161-62). On June 6, 1994, Assistant United States Attorney John Parr

telephoned Kessler, and began a series of discussions which resulted in an

ultimatum: unless Starkey made a proffer to the government disclosing

his knowledge regarding the weapon, he would be indicted under § 33 for

his participation in the rock throwing incident, as well as a charge related

to possession of a stolen weapon. Parr further told Kessler that, if the jury

determined that Lowe was not responsible for York's death, the

government would seek Starkey’'s indictment on that charge, using

"The Courts of Appeals have held, with cne exception, that Rule

801(d\(1)(B) does not bar introduction of the prior consistent statement Tye

a witness other than the declarant. See United States v. Montague, 958 F 2d

1094 (D.C. Cir. 1992) and cases cited therein.

29

Lowe’s testimony to establish that Starkey had possession of the gun at

the time of the shooting (JA 1162-64).

On the other hand, Parr said, if Starkey had purchased the gun

subsequent to the shooting, or “if he didn’t do anything but throw the

rocks and we accepted the proffer, that probably wouldn't be a problem,

we'd give him -- we'd do an immunity agreement” (JA 1164-65).

Despite the obvious detriment to his own self-interest, Starkey

then made a proffer to the prosecutors in which he admitted that he had

purchased the gun from Lowe prior to York’s death, although he also

claimed he had taken it to his farm in Pocohantas County, West Virginia,

where it remained until it was turned over to the prosecutors (JA 1164-

65).

The government and defense stipulated that Starkey’s plan to

assert the Fifth Amendment if called at trial rendered him “unavailable as

a witness” under F. R. E. Rule 804(b) (JA 1174). The defense then

attempted to admit the substance of Starkey’s proffer into evidence, either

through a stipulation that the proffer had been made, or through the

testimony of Kessler, Johnson or Hoffert, as a statement against interest

under F.R. Evid. Rule 804(b)(3).""

The Government repeatedly acknowledged that the statement was

against Mr. Starkey’s penal interests:

There are still -- this is an individual who has no

immunity regarding this incident at all. There are all

kinds of charges for which could be brought against him.

(Pretrial transcript, p. 13.

However, the district court ruled the statement inadmissible under

Rule 804(b)(3), finding no “corroborating circumstances clearly indicate

the trustworthiness of the statement,” as required by the rule. The Court

of Appeals upheld the district court’s exclusion Starkey’s proffer, in part

"Rule 804 (b) Hearsay Exceptions. The following are not excluded by

the hearsay rule if the declarant is unavailable as a witness:

(3) Statement Against Interest _

nay: Apso: rahe spleen op six Bean g so far

contrary to rant's pecuniary or proprietary interest, or

so far tended to subject him to civil or criminal liability, or to

render invalid’a claim by him against another, that a

reasonable man in his position would not have made the

statement unless he believed it to be true. A statement tending

to expose the declarant to criminal liability and offered to

exculpate the accused is not admissible unless corroborating

circumstances clearly indicate the trustworthiness of the

statement.

30

because “there was no evidence offered to corroborate the portion of

Starkey’s statement that, following the alleged purchase, the ... pistol was

taken out to Starkey’s farm and remained there until Starkey relinquished

control over it several months later.” Lowe, supra at 1146; App-16.

However, this reasoning does not justify excluding the rest of Starkey’s

proffer, which was amply corroborated: testimony by Erskine Holstein

(JA 94-95) and William Lowe, as well as the Petitioner himself, that

Petitioner had offered the gun for sale a week prior to the shooting;

William Lowe’s proffer that Petitioner told him, prior to July 22, that the

gun already had been sold and could not be retrieved by him; the lack of

any witnesses placing Petitioner in possession of the gun for a week prior

to the shooting; and testimony by the miners who appeared as government

witnesses that, when they saw Lowe immediately before and after the

shooting, they saw nothing on his person or under his clothing that could

have been the ten-inch long Colt pistol (JA 339, 357, 385).

The Court of Appeals also justified the exclusion of Starkey’s

proffer on the grounds that Starkey had a motive to lie since he and Lowe

were “union brethren” and because “the government, through its theory

of the shooting, could not place Starkey in the area in which the fatal shot

originated.” Jd. Petitioner is aware of no prior case in which mere

membership in a union has been considered a sufficient motive to commit

perjury. Moreover, the Court’s statement that Starkey was excluded as

a suspect by the government’s evidence regarding the origin of the shot is

not supported by the record. The following testimony by Earnest Woods

constitutes the entire record evidence as to Starkey’s location at the time

of the shooting:

Q. Do you know an individual by the name of Jack Starkey?

I think his name is Lawton Jack Starkey.

Yes, sir.

Did you recall seeing him in that area at that time?

Yes, sir.

Can you tell me and mark where you believe he was at

that time?

(Complied) (JA 324).

Woods‘ “complied” with the government’s request, apparently, by

placing a mark on the government’s photographic exhibit of the shooting

site. However, the record does not even suggest the location Woods

identified. Woods’ testimony also fails to establish the precise time at

> QPO>

31

which he saw Starkey, or whether Starkey could have changed his position

prior to the shooting.

Moreover, the government apparently believed that it had

sufficient evidence to prosecute Starkey in connection with York’s death.

The Assistant United States Attorney told Starkey’s attorney that, if the

jury determined that Lowe was not responsible for York’s death, the

government would seek Starkey’s indictment on that charge, using Lowe’s

testimony to establish that Starkey had possession of the gun at the time

of the shooting (JA 1162-64). Despite'the obvious detriment to his own

self-interest, Starkey then made a proffer to the prosecutors in which he

admitted that he had purchased the gun from Lowe prior to York’s death,

and his attorney delivered the weapon to the prosecutors (JA 1159).

This corroborating evidence, together with the indicia of

reliability resulting from the circumstances under which the proffer was

made -- including Starkey’s exposure to a direct threat of prosecution, and

the active involvement of his attorney in the making of the proffer -- were

more than sufficient to permit Lowe to inform the jury of Starkey’s

proffer.

In its final argument, the government exploited Lowe’s inability

to present evidence that he had sold the gun prior to York’s shooting:

A.nd [Lowe] had possessed that gun. No one questioned

-- no one said that he didn't have that gun during the

course of this trial, ladies and gentlemen. You never

heard any testimony, other than the fact that that

defendant had that gun. Starkey, and the court will read

you an instruction in reference to the invocation of a

Fifth Amendment right and what tends to inculpate

means. It means just that, it tends to inculpate, nothing

else. No testimony came out differently. The point is

that gun was there (JA 982).

Under the unusual circumstances of this case, the court’s refusal

to admit evidence of Petitioner’s prior consistent statement to his nephew

and Starkey’s proffer, which would have tended to establish that the

defendant “didn’t have that gun” at the time of the shooting, constitutes

not only an abuse of discretion but a denial of Lowe’s right to due process.

CONCLUSION

32

For the reasons stated above, Petitioner Jerry Dale Lowe asks this

Court to issue a Writ of Certiorari to the United States Court of Appeals

for the Fourth Circuit and, upon review of that Court’s decision, to reverse

his conviction.

Respectfully submitted,

a > oe

koko AAG n eM,

Rebecca A. Baitty

REBECCA A. BAITTY, P.A.

9 Fillmore Drive

Sarasota, Florida 34236

Telephone: (941) 388-3400

Attorney for Petitioner

33

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

JERRY DALE LOWE, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent.

Petition Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

Rebecca A. Baitty

Rebecca A.Baitty, P.A.

9 Fillmore Drive

Sarasota, FL 34236

(941) 388-3400

Counsel for Petitioner

APPENDIX

TABLE OF CONTENTS

Opinion of United States Court of Appeals for the

Fourth Circuit, United States v. Lowe,

pe ary ss Te 2...) App-|

Order of United States Court of Appeals for the

Fourth Circuit, entered November 24, 1995,

denying Appellant’s Petition for Rehearing and

Suggestion of Rehearing En Banc .............. App-27

Mandate of United States Court of Appeals for

the Fourth Circuit, United States v. Lowe, filed

ER i ie pe App-29

65 F.3d 1137

UNITED STATES of America, Plaintiff-Appellee,

v.

JERRY DALE LOWE, Defendant-Appellant.

No. 94-5713.

United States Court of Appeals,

Fourth Circuit.

Argued July 13, 1995.

Decided Sept. 20, 1995.

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

HAMILTON, Circuit Judge:

Appellant, Jerry Dale Lowe (Lowe), appeals his conviction and

sentence for three violations of 18 U.S.C. § 33 and one violation of 18

U.S.C. § 924(c)(1). For reasons that follow, we affirm.

I

The events giving rise to Lowe's criminal prosecution occurred on

July 22, 1993, at a picket line during a national strike by the United Mine

Workers of America (UMWA). As part of the strike, which began on

May 18, 1993, Local 5958 of the UMWA began a work stoppage at a

surface mine in Logan County, West Virginia. The mine, known as the

Ruffner Mine, was operated and owned by Apogee Coal Company, d/b/a

“Arch of West Virginia" (Arch). The coal mined from the Ruffner Mine

was distributed to various states in the United States.

Arch regularly employed Blackhawk Security and Investigators

to provide security services when the mine was not on strike. However,

after being selected by the UMWA as one of the targets of the national

strike, Arch contracted with Elite Security Company (Elite), a North

Carolina corporation. Elite assumed the responsibility of providing

security services for safeguarding personnel, supplies, and equipment of

Arch and its subcontractors.

App-|

The picket line at issue was not at the entrance to the Ruffner

Mine, but rather on a road, Slab Fork Hollow Road, which leads to the

entrance of the Orion Mine, a mine not selected as a target by the UMWA.

The picket line on Slab Fork Hollow Road was established, among other

reasons, because the Orion Mine, which was not a target of the UMWA,

continued to mine coal for Arch during the strike.

Slab Fork Hollow Road runs from Rum Creek Road into a hollow

where it eventually leads to the entrance to Orion Mine and a sediment

pond used by Arch.' The picket line was located on Slab Fork Hollow

Road a short distance from the point where Slab Fork Hollow Road and

Rum Creek Road intersect. The picket line was also close to an access

road which ran perpendicular to Slab Fork Road; the access road was on

the left when traveling away from Rum Creek Road toward the Orion

Mine and the sediment pond. ”

Prior to the strike, Arch contracted with Deskins Contracting

(Deskins) to provide environmental services to the sediment pond on Slab

Fork Hollow Road utilized by the Ruffner Mine? After receiving a

citation for a violation of the environmental laws, which could have led to

the closing of the Ruffner Mine, Arch contracted with Deskins to clean the

sediment pond.

On July 22, 1993, heavy equipment was taken to the sediment

pond to perform the legally-mandated environmental corrections. Two

Deskins employees, Marion Hensley (Hensley) and John Edward York

(York), were assigned to travel to the sediment pond in separate company

trucks owned by Deskins and to remove sludge from the sediment pond.

'The sediment pond on Slab Fork Hollow Road utilized by Arch and the

Orion Mine were accessible only from Slab Fork Hollow Road.

*The side of Slab Fork Hollow Road on which the entrance to the access

road is located was referred to at trial as the “creek side” of Slab Fork Hollow

Road; a creek runs along that side of Slab Fork Hollow Road.

*Deskins, a West Virginia based business, provided mine contracting

services, including environmental services, in both West Virginia and Kentucky.

App-2

Hensley arrived at the sediment pond on the morning of July 22, 1993,

and was later joined by York between 12:30 p.m. and 1:00 p.m.

Various union pickets appeared at the picket line pursuant to their

shift obligations. Although Lowe was not scheduled to work the picket

line on July 22, 1993, he arrived at the picket line sometime between noon

and 1:00 P.M. When Lowe learned that the Deskins' equipment had

passed the picket line traveling to the sediment pond, he left the area, and

returned to his home, which was located nearby. Once at his home, Lowe

telephoned the president of Local 5958, Emest Lee Woods (Woods).

Lowe left a message for Woods regarding the heavy equipment's arrival

at the sediment pond and insisted that he come to the picket line. Lowe

then returned to the picket line. While Lowe was at the picket line that

day, he drank Budweiser Light beer* and stopped the second-shift Orion

miners from reporting to work.°

At approximately 5:00 p.m., a Ford Bronco driven by Larry

Kopplin of Elite and a Chevrolet Club Cab driven by another emplovee of

Elite, left the guard shack at the entrance of the Ruffner Mine to provide

an escort through the picket line for Hensley and York.* As the two-car

convoy travelled up Slab Fork Hollow Road and passed the picket line, the

Ford Bronco was hit by a steel ball shot from a wrist rocket launched by

one of the pickets. The ball hit the Ford Bronco below the glass on the

passenger side. As the security vehicles were proceeding up Slab Fork

_ Hollow Road toward the sediment pond, the pickets heard a loud noise,

which some pickets believed to be a backfire. Others believed the noise

was a firecracker, and still others thought it was a gun shot resulting from

one of the security guards firing into the air.

‘Lowe brought the Budweiser Light beer to the picket line in his truck.

UMWA regulations prohibit the consumption of alcohol at picket lines.

*Woods later instructed the pickets to allow the second-shift Orion

miners to report to work.

*The entrance to the Ruffner Mine is three to four miles from the

intersection of Slab Fork Hollow Road and Rum Creek Road.

App-3

Woods was one of the pickets who believed that the security

guards had fired a shot to intimidate the pickets. Angered by this ection,

Woods, along with other pickets gathered to discuss an appropriate

response. At this meeting, the pickets decided to ambush the vehicles

when they returned.

Collectively, the pickets began taking positions for the attack,

masking themselves and gathering rocks as they waited for the trucks to

return. Most of the pickets took positions on the access road. Two

pickets, Luther Shell and Larry Perry, took positions on the side of Slab

Fork Hollow Road opposite the creek. Lowe positioned himself in a

wooded-area along the creek side of Slab Fork Hollow Road; this area

was in a direction away from the access road toward the Orion Mine and

the sediment pond utilized by Arch.

At approximately 5:30 p.m., the convoy of four vehicles, lead by

Kopplin in the Ford Bronco, started down Slab Fork Hollow Road,

followed by York's pick-up truck, the truck driven by Hensley, and finally

the Chevrolet Club Cab driven by another employee of Elite. Before they

reached the area where the pickets gathered, Hensley and York stopped

their vehicles to have a discussion. According to Hensley, York stated that

he was afraid to go ahead of Hensley and asked Hensley to go in front of

him. Hensley and York then switched the positions of their trucks, with

Hensley going in front of York.

As the vehicle driven by Kopplin approached the area where ihe

pickets were waiting, his Ford Bronco was pelted by rocks, smashing the

windshield. Hensley’s vehicle suffered the same attack, with his

windshield being broken. When York saw the rock attack, he initially

slowed down and then sped up. As York was approaching the rock

throwers, a bullet, fired from the creek side of Slab Fork Hollow Road

from the area Lowe had positioned himself, entered the rear window of his

pick-up truck, striking York in the head and killing him instantly. York's

vehicle came to rest on the side of Slab Fork Hollow Road opposite the

creek. The Chevrolet Club Cab's back passenger window was also struck

by a bullet from the same area on the creek side of Slab Fork Hollow

Road.

App-4

When Kopplin attempted to aid York, the pickets continued to

throw rocks until Woods realized that York was seriously injured and told

them to stop. At that time, the pickets complied. The pickets then began

running in a direction away from the vehicle in which York lay dead.

Following the report of the shooting, the West Virginia State

Police appeared at the scene with Corporal Bob Johnson (Johnson) taking

the lead in the investigation. Statements were taken that night from a

number of the miners who were present at the picket line. In his

statement, Lowe admitted to participating in the rock attack, but

specifically denied that he had been drinking.

The continuing investigation in the case revealed that the bullet

that entered the back of York's head had a “left-hand twist,” which

immediately suggested to the officers that they were looking for a

Colt-manufactured pistol. A Colt Trooper Mark III pistol was known to

be a pistol that could produce a "left- hand twist” marking on a bullet. It

was later learned that Lowe, on a day previous to the day York was killed,

possessed a Colt Trooper Mark III pistol at the picket site, having

transported it to the picket site in his truck. On two occasions during the

investigation, Johnson and FBI Agent Brad Hoffert asked Lowe if he had

ever owned, traded, or possessed a Colt Trooper pistol. On each occasion,

Lowe denied owning, possessing, or trading such a pistol.

The investigaters later learned that William Lowe, Lowe's

nephew, had brought a stolen .357 Colt Trooper Mark III pistol to West

Virginia from Marseilles, Illinois, on July 10, 1993, showed the weapon

to Lowe on or about July 12, 1993, and gave it to him approximately two

days later. Approximately three months after the ambush, the government

recovered the Colt Trooper Mark III pistol possessed by Lowe and

William Lowe when it was turned over to the government by the attorney

for Lawton Jack Starkey (Starkey).’ At trial, Lowe testified that he sold

the weapon to Starkey "[a] week to two weeks” prior to the ambush. (J.A.

785).

"Starkey was one of the pickets who participated in the ambush.

App-5

On November 2, 1993, a grand jury sitting in the Southern

District of West Virginia returned a four-count indictment against Lowe

and seven others. Count one charged Lowe and seven others with

conspiring to willfully, with reckless disregard for the safety of human

life, attempt to damage and disable a motor vehicle which was being used

in interstate commerce, and likewise to incapacitate the driver of the

vehicle, see 18 U.S.C. §§ 33 and 371. Count two of the indictment alleged

that Lowe, aided and abetted by others, with reckless disregard for the

safety of human life, willfully damaged, disabled, and attempted to

damage and disable motor vehicles which were being used in interstaie

commerce, see 18 U.S.C. §§ 33 and 2. Count three charged Lowe with an

additional violation of 18 U.S.C. § 33 for shooting York, and count four

charged Lowe with using a firearm during a crime of violence, see 18

US.C. § 924(c)(1).

On June 13, 1994, the case proceeded to trial. At trial, the

government introduced evidence as to the positioning of each of the

pickets participating in the ambush. The government also introduced

evidence that, just prior to the ambush, Lowe possessed a BB-gun, but

complained that the BB-gun was “worthless” and that he "would be better

off to throw a rock." (J.A. 340). After making this statement, Lowe took

the BB-gun back to his truck, the same truck in which he had been seen

carrying the Colt Trooper Mark III pistol. The government also

introduced the expert testimony of John O'Neil (O'Neil), a senior firearms

and toolmark examiner for the Bureau of Alcohol, Tobacco, and Firearms.

O'Neil, who testified as an expert in the determination of ballistics,

the Colt Trooper Mark III pistol was the weapon that fired the shot which

killed York. O'Neil further testified, in relation to shot reconstruction, that

based on information normally relied upon by authorities in his field of

expertise, he was able to determine a conical area from which the fatal

shot would have had to originate. Only Lowe was known to have been

within the area reflected by this cone. At the site, and within the possible

firing area indicated by O'Neil, was a banked area approximately four to

six feet off Slab Fork Hollow Road. In that area, a Budweiser Light beer

can was recovered.

App-6

On June 24, 1994, the jury returned verdicts of guilty on all four

counts of the indictment. The district court sentenced Lowe to 130

months’ imprisonment. Lowe was also ordered to pay restitution in the

amount of $6,318.50 as reimbursement to York's family for funeral

expenses.*

Lowe appeals.

II

We will first address Lowe's challenges to the sufficiency of the

evidence.

A

In reviewing the sufficiency of the evidence to support Lowe's

convictions, this court must view the circumstantial and direct evidence in

the light most favorable to the government and determine whether any

rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Giunta,

925 F.2d 758, 764 (4th Cir.1991). Credibility determinations are within

the sole province of the jury and are not susceptible to judicial review.

See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.1989).

B

Lowe argues that the government did not offer sufficient proof at

trial that his conduct fell within two definitional provisions of 18 U.S.C.

§ 33. To address these arguments, we must turn to the pertinent language

of § 33:

Whoever willfully, with intent to endanger the safety of

any person on board or anyone who he believes will

*‘Lowe’s seven codefendants entered into plea agreements with the

government wherein they agreed to plead guilty to destruction of property in state

court. Each codefendant was sentenced to 120 days’ imprisonment and fined

$500.

App-7

board the same, or with a reckless disregard for the

safety of human life, damages, disables, destroys,

tampers with, or places or causes to be placed any

explosive or other destructive substance in, upon, or in

proximity to, any motor vehicle which is used, operated,

or employed in interstate or foreign commerce, or its

cargo or material used or intended to be used in

connection with its operation; or ...

Whoever with like intent, willfully disables or

incapacitates any driver or person employed in

connection with the operation or maintenance of the

moior vehicle, or in any way lessens the ability of such

person to perform his duties as such; or

Whoever willfully attempts to do any of the

aforementioned acts--shall be fined not more than

$10,000 or imprisoned not more than twenty years, or

both.

The accompanying definitional provision, 18 U.S.C. § 31, defines "motor

vehicle" as a:

carriage or other contrivance propelled or drawn by

mechanical power and used for commercial purposes on

the highways in the transportation of passengers,

passengers and property, or property or cargo[. ]

Section 31 also defines “used for commercial purposes" as the:

carriage of persons or property for any fare, fee, rate,

charge, or other consideration, or directly or indirectly in

connection with any business, or other undertaking

intended for profit.

App-8

a, Se

Lowe contends that the vehicles involved in this case did not meet

the definition of "motor vehicle" as defined in 18 U.S.C. § 31. We

disagree. Clearly, all of the vehicles in the convoy were: (1) a “carriage or

other contrivance propelled or drawn by mechanical power"; (2) used

“directly ... in connection with a[{ ] business"; and (3) used on the

highways. Furthermore, each of the vehicles was used "in the

transportation of passengers." The Elite vehicles were used to escort the

Deskins employees from the waste area to a safe point outside the mine,

and the vehicles used by Deskins were used to transport workers for

Deskins from the waste area to a safe point outside the mine. Thus, the

vehicles in the convoy were "motor vehicles" within the meaning of the

statute.

2

Lowe's next contention is that the government did not offer

sufficient proof at trial that the vehicles at issue were used in interstate

commerce within the meaning of § 33. Again, we disagree. The vehicles

at issue here were clearly used in interstate commerce. Arch was engaged

in the distribution of coal in the interstate market and Arch employed two

companies, Elite and Deskins, each of which regularly sold security or

environmental services in the interstate market. The vehicles in the

convoy were used to further the distribution of Arch's coal to interstate

markets; indeed, without the assistance of Elite and Deskins, it is likely

- the Arch mine would have had to cease its operations permanently.

Furthermore, the vehicles were used in furtherance of Elite's business of

furnishing security services in the intersiate market. In short, we have no

difficulty concluding the vehicles in the convoy were used in interstate

commerce at the time of the attack.

C

Lowe also contends that the government offered insufficient proof

at trial that he fired the shot that killed York. We disagree. In this case,

the jury had ample circumstantial evidence from which it could rationally

conclude that Lowe fired the fatal shot from the Colt Trooper Mark III

pistol which ended the life of York. First, as testified to by O'Neil, it was

uncontroverted at trial that the Colt Trooper Mark III pistol fired the fatal

App-9

shot that killed York. Second, Lowe, within days prior to the shooting,

possessed the Colt Trooper Mark III pistol at the picket site. Third,

shortly before the attack, Lowe was seen in possession of a BB-gun, but

complained it was worthless for an attack on the vehicles; Lowe then took

the BB-gun back to his truck--the same truck in which he had been seen

carrying the Colt Trooper Mark III pistol. Fourth, there is evidence in the

record from which the jury could find that Lowe fired the fatal shot. In

this regard, O'Neil's testimony established a cone-shaped area from which

the fatal shot originated and the circumstantial evidence, namely, the

evidence that the shot came from the creek side of the road in the area

Lowe positioned himself for the ambush and the discovery of the

Budweiser Light beer can within the conical area described by O'Neil,

placed Lowe in the area described by O'Neil. In light of this evidence, a

rational jury could determine, beyond a reasonable doubt, that Lowe

possessed the Colt Trooper Mark III pistol and fired the fatal shot that

killed York.

Il

Lowe also attacks two evidentiary rulings made by the district

court.

A

Lowe argues that the district court committed reversible error

when it refused to admit his statement (made several days prior to the

shooting) to William Lowe that he had sold the Colt Trooper Mark Ii

pistol and could not get it back. At trial, Lowe sought to introduce this

statement during the cross- examination of William Lowe, and later

during his own direct examination. On the former occasion, Lowe claimed

his statement was not hearsay because the statement was not offered for

the truth of the matter asserted, see Fed.R.Evid. 801(c), and, even if it

was, the statement was res gestae. On the latter occasion, Lowe

contended that his statement to William Lowe was admissible as a

statement against interest under Rule 804(b)(3). After both attempts to

admit this statement, the district court sustained the government's

objection.

App-10

On appeal, Lowe argues that his statement to William Lowe

should have been admitted as a prior consistent statement to rebut an

express or implied charge of recent fabrication under Rule 801(d)(1)(B).

Having failed to argue at trial that his statement to William Lowe was

admissible under Rule 801(d)(1)(B), we review for plain error under

Fed.R.Crim.P. 52(b). See Hudspeth v. Commissioner, 914 F.2d 1207,

1215 (9th Cir. 1990) (Under Rule 103(a) and (d), "{w]hen the trial court

excludes evidence, failure to make a timely invocation of the grounds for

the admission of the evidence renders the issue reviewable only for plain

error."); see also United States v. Pugliese, 712 F.2d 1574, 1580-81 (2d

Cir.1983) (On appeal, defendant precluded from asserting grounds for

admissibility that were not raised at trial); United States v. Sims, 617 F.2d

1371, 1375-78 (9th Cir.1980) (court applied plain error standard to

defendant's argument on appeal that FBI report was not hearsay or was

admissible under the public records exception, Rule 803(8), where the

defendant, after the government objected to the report's admission,

contended that the report was admissible as a business record under Rule

803(6)).

Under Fed.R.Crim.P. 52(b), our review is limited to correcting

errors which meet four requirements. See United States v. Olano, --- U.S.

----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under Olano, we may

correct: (1) error; (2) that is plain; (3) that affects substantial rights;

and (4) that " ‘seriously affect{s] the fairness, integrity or public reputation

- of judicial proceedings.'" Id. at 1776-79.

We believe the district court did not commit error, let alone plain

error, in refusing to admit Lowe's statement. Rule 801(d){1) provides that

a statement is not hearsay if:

The declarant testifies at the trial or hearing and is

subject to cross- examination concerning the statement,

and the statement is ... (B) consistent with the declarant's

testimony and is offered to rebut an express or implied

charge against the declarant of recent fabrication or

improper influence or motive.

Under this rule, "[clorroborative testimony consisting of prior, consistent

statements is ordinarily inadmissible unless the testimony sought to be

bolstered has first been impeached." See United States v. Weil, 561 F.2d

1109, 1111 (4th Cir.1977); see also United States v. Leggett, 312 F.2d

566, 572 (4th Cir. 1962) ("The decisions following the established rule are

in agreement in holding that proof of prior consistent statements is not

admissible unless and until there has been some impeachment of the

witness."). Because Lowe attempted to introduce his prior statement

before his testimony was impeached by the government, his statement to

William Lowe was not admissible under Rule 801(d)(1)(B) during the

cross-examination of William Lowe, and later during his own direct

examination.

During the presentation of Lowe's defense, he called William

Lowe to testify. Lowe argues that, during William Lowe's direct

examination, the district court erred in refusing to admit Lowe's statement

to William Lowe pursuant to Rule 801(d){(1)(B). The record, however,

reflects that the district court did not exclude the statement at this time.

The following exchange occurred during the direct examination of

William Lowe:

Q. After you gave him the gun, did there come a time

that you went to you uncle to try to get the gun back?

A. Yes.

Q. Was that before or after July 22nd?

A. Before.

Q. Were you able to get the gun back from Mr. Lowe?

MR. PARR: Objection, Your Honor. This is what we

dealt with at the bench.

THE COURT: The witness has already answered that

question earlier in the trial, and if it's

objectionable, it's simply because it's already

App-12

PPD, Fat

:

:

:

:

:

Bd

5

FRA a

PRO KS PTI

been covered, but I suppose there is no harm in

answering it again. Put the question again and

let's see what the witness' answer is.

Q. Were you able to get the gun back, Mr. Lowe?

A. No, I wasn't.

(J.A. 812-13). Because Lowe never sought to introduce his statement to

William Lowe during William Lowe's direct examination, the district

court could not have committed reversible error in refusing to admit it at

that time.

B

The second statement Lowe attempted to introduce concerned a

proffer given by the attorney for Lawton Jack Starkey regarding Starkey's

purchase of the Colt Trooper Mark III pistol. The proffer from Starkey's

counsel indicated that Starkey had purchased the Colt Trooper Mark III

pistol from Lowe prior to July 22, 1993, and that following his purchase,

he took the pistol to his farm in Pocahontas County, West Virginia, where

it remained until he made arrangements with his counsel to provide the

weapon to the government nearly three months after the attack. The

_ the pistol from Lowe, he did not know it was stolen. The proffer likewise

denied any involvement by Starkey in the shooting of York

At trial, Lowe contended that counsel for Starkey should be

required to testify and that the proffer should be admitted as a statement

against interest under Rule 804(b)(3). The district court ruled that the

Statement was clearly hearsay and not admissible as a statement against

interest.

Rule 804(b)(3) provides:

A statement which was at the time of its making so far

contrary to the declarant's pecuniary or proprietary

interest, or so far tended to subject the declarant to civil

App-13

or criminal liability, or to render invalid a claim by the

declarant against another, that a reasonable person in the

declarant's position would not have made the statement

unless believing it to be true. A statement tending to

expose the declarant to criminal liability and offered to

exculpate the accused is not admissible unless

corroborating circumstances clearly indicate the

trustworthiness of the statement.

A staternent may be admitted under this rule if the declarant is

unavailable; the statement is genuinely adverse to the declarant's penal

interest; and “corroborating circumstances clearly indicate the

trustworthiness of the statement." "The party offering the statement bears

the ‘formidable burden' of meeting the requirements of Rule 804(b)(3),

and the court's decision on its admissibility is reviewed for abuse of

discretion." United States v. Bumpass, 60 F.3d 1099, 1102 (4th

Cir. 1995) (quoting United States v. MacDonald, 688 F.2d 224, 233 (4th

Cir.1982), cert. denied, 459 U.S. 1103, 103 S.Ct. 726, 74 L.Ed. 2d 951

(1983)).

Having asserted his Fifth Amendment privilege against self-

incrimination, Starkey was unavailable to Lowe. See Fed. R Evid

804(a)(1). The question of whether Starkey's statement to his counsel was

adverse to his penal interests is a much closer question, and a question we

it found the lack of sufficient "corroborating circumstances."

In Bumpass, we quoted from our decision in United States v.

Brainard, 690 F.2d 1117 (4th Cir.1982), to explain the nature and

purpose of corroborating circumstances under Rule 804(b)(3): The

requirement of corroborating circumstances was designed to protect

against the possibility that a statement would be fabricated to exculpate

the accused. Thus, the Advisory Committee explained the requirement of

corroborating circumstances as follows:

[OJne senses in the decisions a distrust

of evidence of confessions by third

persons offered to exculpate the

App-14

accused arising from suspicions of

fabrication either of the fact of the

making of the confession or in its

contents, enhanced in either instance

by the required unavailability of the

declarant.

eee Teatery Hk

F.R.Evid. 804(b)(3), Advisory Committee Notes. The

rule requires not a determination that the declarant is

credible, but a finding that the circumstances clearly

indicate that the statement was not fabricated. It is the

statement rather than the declarant which must be

trustworthy.

Bumpass, 60 F.3d at 1102 (quoting Brainard, 690 F.2d at 1124). The

requirement of corroborating circumstances “need not ‘remove all doubt

with respect to the hearsay statement,’ " Jd. (quoting Brainard, 690 F.2d

at 1125 n.14), but rather the requirement only mandates “corroborating

circumstances ‘clearly indicate the trustworthiness of the statement.’ " Jd.

In Bumpass, we added these words of caution:

SAE? suititiaion cites eeennues and ceteic automa caine

But it must be remembered that admission of such

hearsay leaves the party against whom it is offered

without the important benefit of cross examination. The

level of corroboration therefore must be sufficient that

cross examination would add little to test the hearsay's

reliability.

Id.

To assess the corroborating circumstances of a given statement,

we look to:

(1) whether the declarant had at the time of making the

statement pled guilty or was still exposed to prosecution

for making the statement, (2) the declarant's motive in

making the statement and whether there was a reason for

the declarant to lie, (3) whether the declarant repeated

App-15

the statement and did so consistently, (4) the party or

parties to whom the statement was made, (5) the

relationship of the declarant with the accused, and (6)

the nature and strength of independent evidence relevant

to the conduct in question.

Id.

Working from the premise that Lowe has a "formidable burden"

in establishing corroborating circumstances, we cannot conclude that the

district court abused its discretion in refusing to admit Starkey's statement

through his attorney. First, there was no evidence offered to corroborate

the portion of Starkey’s statement that, following the alleged purchase, the

Colt Trooper Mark Ii pistol was taken out to Starkey's farm and remained

there until Starkey relinquished control over it several months later.

Second, although Starkey was arguably exposed to prosecution in light of

his statement, Starkey and Lowe were union brethren, and Starkey had a

clear motive to lie in this case: the government, through its theory of the

shooting, could not place Starkey in the area in which the fatal shot

originated® Third, Starkey's statement contradicts a crucial

uncontroverted fact in the case: the Colt Trooper Mark III pistol fired the

fatal shot that killed York. When assessing the corroborating

circumstances of a statement, a court can make an assessment of the

evidence. Id. at 1103 ("Even though the assessment of such evidence is

the responsibility of the jury in determining the defendant's guilt, such

evidence may also be considered by the court when ruling on the

trustworthiness of hearsay, an evidentiary question which is committed to

the court for decision."). Fourth, cross-examination of Starkey would

have undoubtedly tested the reliability of Starkey’s statement to his

attorney. Jd. at 1102. In summary, we cannot conclude the district court

abused its discretion in excluding Starkey's statement which was offered

through his counsel.

IV

*Woods’ testimony placed Starkey on the access road at the time of the

ambush.

App-16

* On three fronts, Lowe challenges the district court's jury

instructions. We review the district court's jury instructions "in their

entirety and as part of the whole tral." United States v. Bostian, 59 F.3d

474, 480 (4th Cir.1995). Our focus is on " ‘whether the court adequately

instructed the jury on the elements of the offense and the accused's

defenses.'" Id. (quoting United States v. Fowler, 932 F.2d 306, 317 (4th

Cir.1991)).

: The relevant part of the instructions challenged by Lowe

provides:

I want to define a motor vehicle for you. Under Section

33, the definition of motor vehicle includes contrivances

such as trucks which are used for commercial purposes

on the highways in the transportation of passengers or

property.

A motor vehicle is used for commercial purposes if it is

used for the carriage of persons or property directly or

indirectly in connection with any business or other

undertaking intended for profit.

Combining those terms, for you to find the defendant

guilty of violating Title 18, United States Code, Section

33, the government must, among other things, prove

beyond a reasonable doubt that the trucks involved in

this case were used to transport passengers or property

‘ directly or indirectly in connection with a business or

H other undertaking intended for profit by Arch of West

Virginia, Elite Security, and Deskins Contracting, or any

of them.

ee

ian yal baih-s Ski blicscotpt hates oe 4 ei food alc elt ens Par

Now, having defined motor vehicle for our purposes

here, with respect to the offenses charged under Title 18,

2 United States Code, Section 33, in addition to proving

¢ that the trucks are motor vehicles within the definition

Z just provided, the government has the burden of proving

App-17

that the trucks were used, operated, or employed in

interstate commerce.

The term “interstate commerce" means commerce

between or among the states. It is wot necessary,

however, that the trucks being driven by employees of

Elite Security and Deskins Contracting actually be

traveling across state lines or from one state to another

at the time of the offense or offenses charged in order to

find that they were used, operated, or employed in

interstate commerce.

Rather, for purposes of Section 33, the interstate

commerce requirement may be satisfied if the

government has proved beyond a reasonable doubt that

the trucks being driven by emp!oyees of Elite Security

and Deskins Contracting were used or employed by Arch

of West Virginia in connection with and in furtherance

of its business of distributing coal mined in West

Virginia to consumers in another state, or used or

employed by Elite Security in connection with and in the

course of conducting its business of providing security

services outside the State of North Carolina.

(J.A. 1030-32).

Lowe argues that the district court's instructions "improperly

focuse[d] on the interstate nature of the general business operations of

Arch and Elite Security, without requiring that the vehicles themselves

have some interstate nexus." Appellant's Brief at 19. This argument is

easily disposed of. All the statute requires is that the vehicles be "used"

in interstate commerce; in other words, as the district court stated, the

vehicles must be used in connection with or in furtherance of the interstate

market activities of the entities operating or employing the vehicles. Such

was the case here. The vehicles were used in connection with and in

furtherance of the interstate market activities of Arch aud Elite.

App-18

Lowe also contends that the district court's instructions did not

require the jury to find that the vehicles were being used in the

transportation of passengers, passengers and property, or property and

cargo. In his reply brief at 8, Lowe argues that “any suggestion that the

government must prove that the vehicles were ‘transporting either

passengers or property’ was negated by the instruction that ‘the interstate

commerce requirement may be satisfied if the government has proved ...

that the trucks being driven by employees of Elite Security and Deskins

Contracting were used or employed by Arch of West Virginia in

connection with and in furtherance of its business of distributing coal

mined in West Virginia to consumers in another state, or used or

employed by Elite Security in connection with and in the course of

conducting its business of providing security services outside the State

of North Carolina."

Lowe's argument has no merit, as it confuses the motor vehicle

component with the interstate commerce component of the statute. With

respect to the definition of "motor vehicle,” the district court's instructions

were quite clear:

[T]he definition of motor vehicle includes contrivances

such as trucks which are used for commercial purposes

on the highways in the transportation of passengers or

property.

(J.A. 1030). Once the government established that the vehicles in

question were motor vehicles, e.g., that the vehicles transported

passengers, the jury had to determine whether these vehicles were "used"

in interstate commerce. Contrary to Lowe's protestations, § 33 requires

no more than proof that the vehicles were used in furtherance of or in

conjunction with the interstate activities of entities employing the vehicles.

Lowe's final contention is that the district court's jury instructions

constructively amended the indictment in violation of Stirone v. United

States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Lowe argues

that the district court's "jury instructions improperly permitted conviction

on a theory never adopted by the grand jury: i.e., that the vehicles were

used in interstate commerce on July 22, 1993 because they were being

App-19

‘used or employed by Arch ' in connection with its interstate mining

business." Appellant's Brief at 21.

This argument has no merit. The indictment alleged violations of

18 U.S.C. § 33 by incorporating through reference the following factual

predicate:

(1) Arch was a corporation selling coal from the Ruffner

Mine to various states in the United States;

(2) Arch employed both Deskins and Elite to provide

services; and

(3) Deskins and Elite utilized motor vehicles.

(J.A. 13-15).

This factual predicate unquestionably served as an appropriate

basis for the district court to instruct the jury that the interstate component

of § 33 could be satisfied if the jury found that the vehicles “were used or

employed by Arch of West Virginia in connection with and in furtherance

of its business of distributing coal mined in West Virginia to consumers

in another state." (J.A. 1031).

V

Lowe also raises one other argument which he contends should

be resolved in his favor. He contends that the district court erred in its

application of the Sentencing Guidelines. We have reviewed this

assignment of error and find it to be without merit. For the foregoing

reasons, the judgment of the district court is affirmed.

MOTZ, Circuit Judge, dissenting:

App-20

An employee of a West Virginia company, driving a truck,

without passengers or cargo, that was titled in West Virginia and owned

by his West Virginia employer, was fatally shot as he was leaving a West

Virginia coal mine to return to his employer's West Virginia shop.

Principal responsibility for this tragedy was attributed to appellant Jerry

Dale Lowe.' But Lowe was not charged with murder, manslaughter,

felonious wounding, assault, battery, or any other seemingly appropriate

state law offense. Instead, he was charged with, and convicted of,

violating a federal statute aimed at punishing those who damage

commercial vehicles used in interstate commerce. See 18 U.S.C. § 33.

The majority concludes that the government proved, as it had to, that all

vehicles involved in this case, including that driven by the victim, were (1)

"used for commercial purposes ... in the transportation of passengers ... or

property or cargo" and (2) "used, operated, or employed in interstate or

foreign commerce." 18 U.S.C. §§ 31, 33. I do not believe that either of

these elements was proved, and so I respectfully dissent.”

To come within the reach of § 33, damage must be done to a

"motor vehicle," which is defined as a:

carriage or other contrivance propelled or drawn by

mechanical power and used for commercial purposes

on the highways in the transportation of passengers,

passengers and property, or property or cargo{.}

18 U.S.C. § 31 (emphasis added).

The majority does not suggest that any of the vehicles involved

in this case was used in the transportation of "property or cargo." The

majority does assert, however, that "each of the vehicles was used ‘in the

‘Seven other miners were permitted to plead guilty to a petty state

offense, destruction of property, and were sentenced to 120 days in prison and

fined $500.

*1 agree with the majority’s well-reasoned conclusions as to the

evidentiary and sentencing issues. I also agree that there was sufficient evidence

presented at trial from which a jury could conclude that Lowe fired the shot that

killed the decedent.

App-21

transportation of passengers.'" Maj. op. at 1143. I cannot find any

evidence that any vehicle involved here was ever used for "commercial

purposes" in the “transportation of passengers." The Elite vehicles were

used to escort Deskins vehicles to and from the mine; although the Elite

vehicles contained several Elite employees, there was no evidence that

they were ever used to provide commercial transportation for Deskins

employees or anyone else. The legislative history of § 33 strongly

suggests that it was not intended to apply to vehicles in which emplovees

of the vehicle owner were the only passengers, i.e., that this does not

constitute the "transportation of passengers" for "commercial purposes."

See H.R.Conf.Rep. No. 2287, 84th Cong., 2d Sess. (1956), reprinted in

1956 U.S.C.C.A.N. 3145, 3151 (statute “does not extend to motor

vehicles, including commercial motor vehicles, used merely for the

transportation of property, or for personal or private purposes"

(emphasis added)). Nor has any other court interpreted § 33 to apply to

this or a similar situation; rather the statute has only been invoked in

crimes involving vehicles engaged in true commercial, rather than private,

purposes. See, e.g., United States v. Lambert, 994 F.2d 1088 (4th

Cir. 1993) (Greyhound bus); United States v. Daniels, 948 F.2d 1033

(6th Cir.1991) (same), cert. denied, 503 U.S. 912, 112 S.Ct. 1279, 117

L.Ed.2d 504 (1992); United States v. Heightland, 865 F.2d 94 (6th Cir.)

(truck transporting coal in first phase of interstate shipment), cert. denied,

493 U.S. 826, 110 S.Ct. 90, 107 L.Ed.2d 55 (1989).

However, even if § 33 was intended to apply to vehicles in which

the owner's employees were the only passengers, it would not apply to the

two Deskins vehicles. It was undisputed that the Deskins

vehicles--including the one containing the victim who was fatally

shot-—contained only one person, the driver himself. At least with regard

to the Deskins vehicles then, there cannot be any claim that any

passengers were transported for any purpose, let alone for commercial

purposes. By definition, drivers are not passengers. See also S.Rep. No.

225, 98th Cong., Ist Sess. (1983), reprinted in 1984 U.S.C.C.A.N. 3182,

3500 (discussing the need for amending the definition of “motor vehicle"

to include "property or cargo" because without this addition, the statute

“does not reach the destruction of" single-driver commercial trucks since

they carry “only cargo, not passengers"). Absent evidence that the

App-22

Deskins vehicles were ever used to transport "passengers," “property,” or

"cargo" as required by § 31, the convictions cannot stand.

Furthermore, to make out a violation of § 33, the "motor vehicles"

that are damaged must also be “used, operated, or employed in interstate

or foreign commerce." 18 U.S.C. § 33. The majority asserts that this

requirement is satisfied because the vehicles were used to “further” the

general business activities of Arch (“distribution of Arch's coal") and Elite

_ ¥ 3's business furnishing security services in the interstate market").

Mgj. op. at 1143. No court has ever endorsed such a broad reading of §

33 and for good reason. The plain language of the statute clearly provides

to the contrary.

First, only if a person damages a "motor vehicle which is used,

operated, or employed in interstate ... commerce” is his conduct forbidden

by § 33. Thus, the vehicles themselves must have some connection to

interstate commerce. That the owners of the vehicles, Arch and Elite,

were engaged generally in interstate activities is wholly irrelevant. See

United States v. Voss, 787 F.2d 393, 395 (8th Cir.) (statute broader than

§ 33, which punishes anyone who commits arson on “property used in ...

or ... affecting interstate or foreign commerce," held to require evidence

"that the building [which was burned] was used in an activity affecting

interstate commerce" rather than merely that the building owner was

engaged in interstate commerce (emphasis added)), cert. denied, 479 U.S.

888, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986).

Furthermore, § 33 requires that motor vehicles must be "used in"

interstate commerce, not just "affect" interstate commerce. The Supreme

Court has recognized three categories of statutes enacted by Congress

pursuant to its constitutional authority to regulate interstate commerce:

The Commerce Clause reaches, in the main, three

categories of problems. First, the use of channels of

interstate or foreign commerce which Congress deems

are being misused, as, for example, the shipment of

stolen goods or of persons who have been kidnaped.

Second, protection of the instrumentalities of interstate

commerce, as, for example, the destruction of an

App-23

aircraft, or persons or things in commerce, as, for

example, thefts from interstate shipments. Third, those

activities affecting commerce.

Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359, 28

L.Ed.2d 686 (1971) (emphasis added) (citations omitted). As the Court

has repeatedly emphasized, Congress is aware of the "distinction between

legislation limited to activities 'in commerce,’ and an assertion of its full

Commerce Clause power so as to cover all activity substantially affecting

interstate commerce." United States v. American Bldg. Maint. Indus.,

422 U.S. 271, 280, 95 S.Ct. 2150, 2156, 45 L.Ed.2d 177 (1975)

(emphasis added). Thus, the phrase "in commerce" is a more narrow and

restrictive jurisdictional requirement than the phrase "affecting interstate

commerce," and denotes “only persons or activities within the flow of

interstate commerce—the practical, economic continuity in the generation

of goods and services for interstate markets and their transport and

distribution to the consumer." Jd. at 276, 95 S.Ct. at 2154 (emphasis

added) (quoting Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195,

95 §.Ct. 392, 398, 42 L.Ed.2d 378 (1974)). Had Congress wanted to

include in § 33 vehicles that are merely used to “further” or "affect"

interstate commerce, it could easily have done so. It did not. Compare 18

U.S.C. § 844(1) (applying to vehicles "used in interstate or foreign

commerce or in any activity affecting interstate or foreign commerce "

(emphasis added)).

The jurisdictional phrase “used, operated, or employed in

interstate or foreign commerce" appears in only two other sections of the

Code. Section 32 of Title 18, enacted along with § 33 in 1956, provides

for federal prosecution of anyone who "sets fire to, damages, destroys,

disables, or wrecks ... any civil aircraft used, operated, or employed in

interstate, overseas, or foreign air commerce." 18 U.S.C. § 32. Sections

32 and 33 in turn adopted the language of 18 U.S.C. § 1992, which

authorizes prosecution of anyone who "willfully derails, disables, or

wrecks any train, engine, motor unit, or car used, operated, or employed

in interstate or foreign commerce by any railroad." See H.R-Rep. No.

1979, 84th Cong., 2d Sess. (1956), reprinted in 1956 U.S.C.C.A.N.

3145. In both § 32 and § 1992, Congress was concerned with protecting

certain channels and instrumentalities of interstate commerce, e.g., trains

App-24

and aircraft. Section 33 merely extended that protection to "motor

vehicles ... used, operated, or employed in interstate or foreign commerce."

See, e.g., Lambert, 994 F.2d 1088 (Greyhound bus); Daniels, 948 F.2d

1033 (same); Heightland, 865 F.2d 94 (truck transporting coal in first

phase of interstate shipment); see also 1984 U.S.C.C.A.N. at 3500

("there is a definite Federal interest in keeping open the channels of

interstate commerce in which trucks play a critical role").

The vehicle that the decedent was driving was owned and

operated by a West Virginia company in connection with an intrastate

business transaction with another West Virginia company. There was no

evidence that the vehicle had ever been used outside the state of West

Virginia, in connection with interstate commerce or otherwise. The statute

as interpreted by the majority would extend the reach of § 33 to every

vehicle owned by a person or entity engaged in interstate commerce, no

matter how confined the use of the vehicle, because conceivably every

such vehicle somehow "furthers" the interstate market activities of its

owner. I do not believe Congress intended to stretch the scope of § 33 in

such a manner.

In light of the recent efforts towards "de-federalization,” it is

surprising that the majority chooses to convert what would otherwise be

a classic state- law offense, with strong local overtones, into a federal

crime. In other contexts, the Supreme Court has warned against such

statutory interpretation. See United States v. Bass, 404 U.S. 336, 350, 92

S.Ct. 515, 524, 30 L.Ed.2d 488 (1971) ("[T]he broad construction urged

by the Government renders traditionally local criminal conduct a matter

for federal enforcement and would also involve a substantial extension of

federal police resources. Absent proof of some interstate commerce nexus

in each case, [the statute] dramatically intrudes upon traditional state

criminal jurisdiction." (citations omitted)). Nor does the fact that this

tragedy occurred during a vitriolic labor strike somehow provide a basis

for federal jurisdiction. The Supreme Court has also cautioned against

this:

[I]t would require statutory language much more explicit

than that before us here to lead to the conclusion that

Congress intended to put the Federal Government in the

App-25

business of policing the orderly conduct of strikes.

Neither the language of [the statute] nor its legislative

history can justify the conclusion that Congress intended

to work such an extraordinary change in federal labor

law or such an unprecedented incursion into the criminal

jurisdiction of the States.

United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35

L.Ed.2d 379 (1973).

For all of these reasons, I respectfully dissent.

App-26

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

November 24, 1995

No. 94-5713

CR-93-267

UNITED STATES OF AMERICA

Plaintiff - Appellee

if

JERRY DALE LOWE,

Defendant - Appellant

On Petition for Rehearing with Suggestion for Rehearing In Banc

Appellant filed a petition for rehearing with suggestion

for rehearing in banc.

Judges Niemeyer, Hamilton and Motz voted to deny the petition for

rehearing.

A member of the Court requested a poll on the suggestion for

rehearing in banc, and a majority of the judges voted to deny

rehearing in banc.

The Court denies the petition for rehearing with suggestion for

rehearing in banc.

Entered at the direction of Judge Hamilton for the Court.

App-27

App-28

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

December 4, 1995

No. 94-5713

CR-93-267

US v. Lowe

MANDATE

The judgment of this Court dated 9/20/95 takes effect today.

BERT M. MONTAGUE

CLERK

App-29

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

NOVEMBER 2, 1993, GRAND JURY 92-1

CHARLESTON

UNITED STATES OF AMERICA

v. CRIMINAL NO. CR-93-267

18 U.S.C. § 371

18 U.S.C. § 33

18 U.S.C. §2

18 U.S.C. § 924(c)(1)

JERRY DALE LOWE

EARNEST LEE WOODS

FREDERICK DEXTER CARVER

DAYNOR J. ADKINS

CURTIS R. BROWNING

JERRY E. MAY

LARRY RAY PERRY

LUTHER SHELL

INDICTMENT

The Grand Jury charges:

COUNT ONE

l. At all times material hereto:

a. APOGEE Coal Company doing business as

Arch of West Virginia (hereinafter, "Arch") is and was a Delaware

corporation engaged in the business of mining and selling coal. In

connection with the mining and selling of coal, Arch owned and

operated a coal mine (hereinafter, "the Ruffner Mine") at or near Slab

Fork Hollow Road, at or near Yolyn, Logan County, West Virginia.

App-30

b. Arch is and was engaged in the mining and

distribution of coal from the Ruffner Mine. The coal mined from the

Ruffner mine is distributed through interstate commerce to various

states in the United States.

C. The Ruffner Mine is and was a unionized

operation; that is, the hourly employees of the Mine were represented

by Local 5958 of the United Mine Workers of America (hereinafter,

"the Union").

d. During the Summer of 1993, the Union was

engaged in a labor dispute with Arch.

€. During the course of the labor dispute, the

Union had pickets stationed at or near the Slab Fork Hollow Road

entrance to the Ruffner Mine.

f. Persons acting on behalf of the Union held

training sessions for all members of the Union regarding appropriate

and inappropriate striking activities. Members of the Union were

instructed that acts of violence, including attacks on motor vehicles

owned and operated by Arch or by contractors on their behalf,

constituted improper and unlawful picket conduct. Members of the

Union were also instructed that firearms were not allowed on the picket

line.

g. The defendant, EARNEST LEE WOODS,

was the President of Local 5958 of the Union.

h. The defendant, JERRY DALE LOWE,

acted as a strike captain; that is, a person with primary responsibility

for picket conduct during a shift of picket duty.

i. The defendant, FRED DEXTER CARVER,

also acted as a picket strike captain.

j. The defendants, DAYNOR J. ADKINS,

CURTIS R. BROWNING, JERRY E. MAY, LARRY RAY

App-31

PERRY, AND LUTHER SHELL, were members of the Union who

served picket duty at the Slab Fork entrance to the Mine.

k. All of the defendants received the strike

training described in subparagraph (f) above.

L. Elite Security (hereinafter "Elite”’) is a North

Carolina corporation engaged in providing security services. Elite

operates in various states and is involved in interstate commerce. Elite

was hired by Arch to provide security at the Ruffner Mine. One of

Elite's responsibilities was to provide transport escorts to Arch

employees and suppliers. In connection with its business operations

Elite used, operated, and employed motor vehicles.

m. During the Summer of 1993, Russell L.

Deskins owned and operated Deskins Contracting (hereinafter

"Deskins") a business hired by Arch to provide environmental services

at the Ruffner Mine. Deskins operates in various states and is

involved in interstate commerce. In connection with it's business

operations, Deskins used, operated, and employed motor vehicles.

n. On or about July 22, 1993, Deskins'

employees were removing sludge from a sediment pond at the Ruffner

Mine.

O. On or about July 22, 1993, the defendants,

JERRY DALE LOWE, FREDERICK DEXTER CARVER,

DAYNOR J. ADKINS, CURTIS R. BROWNING, JERRY E.

MAY, LARRY RAY PERRY, AND LUTHER SHELL were

picketing at or near the Slab Fork entrance to the Ruffner Mine.

p. On or about July 22, 1993, the defendant

JERRY DALE LOWE, upon learning that Deskins employees were

removing sludge from a sediment pond at the Ruffner Mine,

telephonically called the residence of defendant EARNEST LEE

WOODS, President of Local 5958.

App-32

q. On or about July 22, 1993, the defendant

EARNEST LEE WOODS traveied to the picket site at or near Yne

Slab Fork entrance to the Ruffner Mine.

4 On or about July 22, 1993, at or near Slab Fork

Hollow Road , Logan County, West Virginia, and within the Southern

District of West Virginia and elsewhere, the defendants, EARNEST

LEE WOODS, JERRY DALE LOWE, FREDERICK DEXTER

CARVER, DAYNOR J. ADKINS, CURTIS R. BROWNING,

JERRY E. MAY, LARRY RAY PERRY, AND LUTHER SHELL,

and other persons whose identities are both known and unknown to the

Grand Jury, did knowingly combine, conspire, confederate and agree

and have a tacit understanding with each other to commit offenses

against the United States, that is, to violate Title 18, United States

Code, Section 33, that is, with reckless disregard for the safety of

human life, to knowingly and willfully disable and incapacitate the

driver and damage and disable and attempt to damage and disable

motor vehicles which were being used, operated and employed in

interstate commerce.

3. On or about July 22, 1993, and in order to effectuate

and accomplish the objects and purposes of the conspiracy, defendants,

EARNEST LEE WOODS, JERRY DALE LOWE, FREDERICK

DEXTER CARVER, DAYNOR J. ADKINS, CURTIS R.

BROWNING, JERRY E. MAY, LARRY RAY PERRY, and

LUTHER SHELL, and other persons whose identities are both known

and unknown to the Grand Jury, did commit and cause to be committed

the following overt acts within the Southern District of West Virginia:

a. The defendants and persons whose identities

are both known and unknown to the Grand Jury gathered together

devices designed and intended to damage and disable motor vehicles,

commonly known as rocks, jack rocks, jack plates, and molotov

cocktails to be used to damage and disable vehicles operated by

Deskins or Elite when they attempted to exit the Ruffner Mine site.

b. The defendants and persons whose identities

are both known and unknown to the Grand Jury also armed themselves

App-33

with rocks, slingshots and firearms for use in the ambush of Elite and

Deskins vehicles attempting to exit the Ruffner Mine site.

Cc. The defendant, JERRY DALE LOWE,

armed himself with a Colt Trooper Mark III pistol, Serial Number

30259U.

d. On or about July 22, 1993, the defendants and

others both known and unknown to the Grand Jury positioned

themselves around the Slab Fork entrance to the Ruffner Mine site to

await the exit of Elite and Deskins vehicles.

e. On or about July 22, 1993, when Deskins and

Elite vehicles attempted to leave the Ruffner Mine site through the Slab

Fork entrance, the defendants and others both known and unknown to

the Grand Jury hurled rocks at said vehicles in a effort to damage and

disable the vehicles.

f. On or about July 22, 1993, defendant

JERRY DALE LOWE discharged the Colt Trooper Mark III .357

caliber magnum revolver, Serial Number 30259U, striking and killing

John Edward York, a/k/a “Eddie York," the driver of a Deskins vehicle.

g. On or about July 22, 1993, defendant

JERRY DALE LOWE discharged a firearm striking a vehicle

operated by an Elite employee.

ALL IN VIOLATION OF TITLE 18, UNITED STATES CODE,

SECTION 371.

App-34

COUNT TWO

1. Each and every allegation of paragraph | of Count

One is incorporated by reference as if each and every allegation is set

forth herein.

2. On or about the July 22, 1993, at or near Slab Fork

Hollow Road, Logan County, West Virginia, and within the Southern

District of West Virginia, the defendants, EARNEST LEE WOODS,

JERRY DALE LOWE, FREDERICK DEXTER CARVER,

DAYNOR J. ADKINS, CURTIS R. BROWNING, JERRY E.

MAY, LARRY RAY PERRY, and LUTHER SHELL, aided and

abetted by each other, with reckless disregard for the safety of human

life, did knowingly and willfully damage and disable and attempt to

damage and disable motor vehicles which were being used, operated,

and employed in interstate commerce; in violation of Title 18, United

States Code, Sections 33 and 2.

App-35

COUNT THREE

l. Each and every allegation of paragraph 1 of Count

One is incorporated by reference as if each and every allegation is set

forth herein.

a: On or about the July 22, 1993 , at or near Slab Fork

Hollow Road, near Yolyn, Logan County, West Virginia, and within

the Southern District of West Virginia, the defendant, JERRY DALE

LOWE, with reckless disregard for the safety of human life, did

knowingly and willfully disable and incapacitate the driver of a motor

vehicle which was being used, operated, and employed in interstate

commerce, by the use of a firearm; in violation of Title 18, United

States Code, Section 33.

App-36

COUNT FOUR

On or about the July 22, 1993, at or near Slab Fork Hollow Road,

Logan County,, West Virginia, in the Southern District of West

Virginia, the defendant, JERRY DALE LOWE, knowingly used and

carried a firearm, namely, a Colt Trooger Mark III .357 caliber

magnum revolver, Serial Number 30259U during and in relation to a

crime of violence for which he may be prosecuted in a court of the

United States, that is, Title 18, United States Code, Section 33, that is,

with reckless disregard for the safety of human life, he did knowingly

and willfully disable and incapacitate the driver and damage and disable

and attempt to damage and disable a motor vehicle which was used,

operated, and employed in interstate commerce; in violation of Title 18,

United States Code, Section 924(c)(1).

A True Bill.

Foreperson

CHARLES T. MILLER

United States Attorney

By:

Assistant United States Attorney

App-37