United States v. Chevie O'Brien Kehoe, Also Known as Jonathan Collins, Also Known as Chevie Collins

Citation: 310 F.3d 579Docket: 99-2897

Court: Court of Appeals for the Eighth Circuit; January 10, 2003; Federal Appellate Court

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Chevie O'Brien Kehoe, along with co-defendant Daniel Lee, was charged with multiple offenses, including violations of the Racketeer Influenced and Corrupt Organizations (RICO) statute, conspiracy to commit murder in aid of racketeering, and robbery, among other crimes. They were tried jointly and convicted of several RICO-related charges and three counts of capital murder. Subsequently, Kehoe received a life sentence without the possibility of parole.

On appeal, Kehoe contended that the evidence was insufficient to establish a RICO enterprise and that his constitutional rights were violated. The appellate court affirmed the conviction, emphasizing that the facts must be viewed in favor of the jury's verdict. 

The criminal activities involved Kehoe's establishment of a white supremacist organization, the Aryan Peoples' Republic (APR), which aimed to create a racially homogenous community in the Pacific Northwest. The enterprise mirrored the anti-government group known as the Order. Key events included the robbery of gun dealer William Mueller in 1995, where Kehoe and his father stole firearms and ammunition, and the kidnapping and robbery of a Jewish couple, Malcolm and Jill Friedman, from whom they stole over $15,000. The stolen funds were used to purchase property in Idaho.

In January 1996, Kehoe and Lee, impersonating federal agents, attacked William Mueller, his wife Nancy, and their daughter Sarah Powell to steal approximately $50,000. After incapacitating the victims, they questioned Sarah about the money, took cash, coins, and firearms, and subsequently killed the family by suffocating them with plastic bags secured by duct tape. They disposed of the bodies in the Illinois Bayou, later discovered in Lake Dardanelle, Arkansas, in June 1996.

Following the murders, Kehoe and Lee traveled to Spokane, Washington, bringing stolen property with them. Kehoe moved frequently across the U.S., selling the Muellers' guns and property. He confessed to his accomplice Cheyne about the details of the murders and their method of operation. 

On February 15, 1997, after a gun show in Cincinnati, Kehoe and Cheyne were stopped by police in Wilmington, Ohio. Kehoe fled, and Cheyne fired at officers during the chaos. Kehoe escaped, leaving behind a Suburban containing stolen property and the federal raid gear used in the crime. 

Kehoe and Cheyne continued to evade capture, with Cheyne eventually turning himself in in June 1997, providing evidence linking the Suburban to the murders. Gloria Kehoe, Kehoe's mother, contacted ATF agents, fearing for her safety, and disclosed information that led to further discoveries of stolen property and confessions from Kehoe and Lee.

On December 12, 1997, Kehoe, Lee, and Kirby Kehoe were indicted. Kirby pled guilty to RICO conspiracy and cooperated with authorities, while Kehoe and Lee were ultimately convicted on all counts after a two-month trial.

Kehoe contests his RICO convictions on two main grounds: the sufficiency of evidence for the existence of an "enterprise" under RICO and the claim that his prosecution for both substantive RICO offenses and RICO conspiracy violates the Double Jeopardy Clause of the Fifth Amendment. Under RICO, an "enterprise" is any organization engaged in activities affecting interstate commerce, and a conviction requires proof of both an enterprise and a pattern of racketeering activity. Kehoe argues that the evidence only indicates his future intentions to organize a group, not the existence of an enterprise.

The court reviews evidence in favor of the verdict, affirming that a jury must find guilt beyond a reasonable doubt. An enterprise is established by showing an ongoing organization where associates function cohesively with a common purpose, continuity of personnel, and a distinct structure. The court found sufficient evidence to support these elements, noting that Kehoe and his associates shared the goal of advancing the interests of the Aryan People’s Republic (APR) and targeted robbery victims based on race. Testimonies indicated they used proceeds from crimes to further their objectives, and communications between members included symbols associated with the APR, demonstrating organizational cohesion.

Kehoe, along with other members of the APR, engaged in coordinated criminal activities aimed at furthering the organization's goals, including stockpiling munitions and planning robberies. Evidence indicated a hierarchy within the APR, with Kehoe as the leader controlling the majority of illegal proceeds, which he distributed among his associates. While Kehoe was not convicted for the murder of Jon Cox, the circumstances surrounding his death contributed to the jury's conclusion that an enterprise existed. Kehoe's argument that the Muellers were not murdered to advance the APR was rejected, as they were targeted for their suspected wealth and potential connection to law enforcement. The jury found sufficient evidence to establish a RICO enterprise and Kehoe's involvement in related crimes.

Regarding double jeopardy, Kehoe contended that being indicted under both RICO substantive offense (18 U.S.C. § 1962(c)) and conspiracy to engage in a RICO offense (18 U.S.C. § 1962(d)) violated the Fifth Amendment. This claim was dismissed, as the court clarified that the offenses are not considered the same if each requires different elements for proof. Specifically, the substantive RICO offense and the conspiracy charge necessitate different evidentiary requirements, allowing for both charges to stand without breaching double jeopardy protections.

Offenses outlined in 18 U.S.C. § 1962(c) and (d) are distinct for double jeopardy purposes, as established by case law, meaning a substantive RICO charge is separate from a conspiracy charge. Kehoe's Double Jeopardy claim is thus rejected. Regarding the Tenth Amendment, Kehoe's conviction under 18 U.S.C. § 1959 for murders in Arkansas is claimed to infringe on state sovereignty, as it allegedly relies solely on state law. This contention is dismissed, as the conviction stems from federal law, specifically targeting racketeering-related murders. The statute requires that state or federal law violations be part of the RICO offense, which is designed to enhance, not replace, existing laws. RICO does not incorporate state law elements but identifies conduct qualifying as predicate acts. Consequently, RICO allows for separate prosecutions for state law offenses, and prior state acquittals do not impede RICO prosecutions. Furthermore, the enactment of RICO and § 1959 does not violate the Tenth Amendment, as they do not infringe upon state authority to prosecute violations of state law.

Kehoe contends that his conviction should be overturned due to inconsistencies between the jury's verdicts in the guilt and penalty phases. While convicted of RICO offenses and three capital murders, the jury in the sentencing phase did not unanimously find that he intentionally killed the victims or participated with the intent that their lives would be taken. Instead, they found that he engaged in an act of violence that recklessly disregarded human life, which he argues contradicts the requirement for a purposeful homicide conviction. However, the court asserts that jury consistency is not necessary for a valid verdict, supported by precedent. The alleged inconsistency between the jury's guilt phase verdict and sentencing findings does not provide grounds for relief, as special findings in sentencing are typically narrow and may result from compromise or error, which cannot invalidate a verdict based on speculation. The court also notes that Kehoe's guilt is supported by sufficient evidence. 

Additionally, Kehoe argues against the district court's refusal to disqualify the United States Attorney's Office due to a potential conflict of interest stemming from attorney Karen Coleman, who had previously worked with his appointed counsel. The court finds that there was no abuse of discretion in this matter, as there was no evidence of confidential information being disclosed, and Coleman was appropriately walled off from the case. Consequently, the court affirms the denial of Kehoe's motion to disqualify the prosecution.

Kehoe appeals the district court's decision not to sever his trial from that of co-defendant Lee, claiming prejudice due to the admission of Lee's out-of-court statements. Under Rule 14, a trial may be severed if there is a risk of prejudice to either party; however, a reversal of such a denial requires evidence of "real prejudice" beyond a mere possibility of improved acquittal odds. The court noted that severance is rarely warranted for alleged co-conspirators. The court determined Kehoe did not demonstrate clear prejudice, as jury instructions directed that each defendant's case be evaluated independently.

Gloria Kehoe testified about statements made by Lee concerning the Mueller murders, including claims about the victims and implicating Kehoe in the crimes. Kehoe contends the court erred in allowing this testimony, arguing it did not meet any hearsay exceptions and that he was denied the chance to cross-examine Lee, violating the Sixth Amendment's Confrontation Clause. The district court deemed Gloria's testimony as admissible nonhearsay, categorizing Lee's statements as adoptive admissions by Kehoe. The admissibility of evidence is reviewed for abuse of discretion, while Confrontation Clause violations are assessed for harmless error.

A statement is not considered hearsay if it is offered against a party who has adopted or believed in its truth, as per Federal Rule of Evidence 801(d)(2)(B). For a statement to qualify as an adoptive admission, the defendant must have been present during its making, understood it, and had the opportunity to deny it. In the case at hand, Kehoe was present when Lee made statements, understood them, and did not refute them, which were supported by additional evidence and Kehoe's own confession. Therefore, Gloria Kehoe's testimony regarding Lee's statements does not present a hearsay issue and does not violate the Confrontation Clause. The underlying purpose of this clause is to afford defendants the chance to cross-examine witnesses against them. 

Kehoe also contended that the district court erred by denying immunity for Lee, who invoked his Fifth Amendment rights and refused to testify. Granting immunity is considered an "extraordinary remedy" and is only appropriate when the evidence is clearly exculpatory. Kehoe failed to demonstrate that Lee's statements would exculpate him; rather, they were incriminating. Consequently, the district court's refusal to grant immunity was justified.

Regarding the sufficiency of evidence for Kehoe's convictions under Arkansas law, he argued that the testimonies of Gloria and Cheyne Kehoe lacked adequate corroboration. Although Arkansas procedural rules typically do not apply in federal trials, they were relevant here because the government did not object to jury instructions based on Arkansas law. Under Arkansas law, an accomplice's testimony cannot solely support a conviction; it must be corroborated by independent evidence linking the defendant to the crime. Corroborating evidence must establish the crime independently of the accomplice's testimony, though it does not need to be substantial enough to sustain a conviction by itself.

Gloria and Cheyne Kehoe provided testimony regarding admissions made by Kehoe about his involvement in the murders of Mueller and Powell. Gloria implicated both Kehoe and Kirby in a 1995 robbery of the Muellers, stating they targeted the family due to their Native American heritage. She assisted authorities in locating storage units containing the Muellers' belongings. Cheyne detailed Kehoe's account of the murders, indicating that he killed Sarah Powell when Lee could not. 

Corroborating evidence included the lack of funds for Kehoe and Lee before the crimes, their sudden wealth afterward, and forensic links, such as paint chips from Kehoe's vehicle found on duct tape used in the crimes. Additionally, Lee's fingerprints were on a display case belonging to Mueller found in Kehoe's rented storage, which also contained Bill Mueller's hair and weapons traced back to Kehoe.

The timeframe of the disappearances (January 11-14, 1996) was established through bank and phone records, although defense witnesses claimed to have seen the Muellers afterward, which the jury deemed uncredible. The jury's role in assessing witness credibility is emphasized, supporting the conclusion that the evidence sufficiently indicated Kehoe's guilt in the robberies and murders.

Kehoe challenged the reliability of Gloria's testimony due to her alleged psychiatric issues and claimed the district court improperly denied his request for psychiatric expert testimony and an examination of Gloria. The court's refusal is deemed appropriate, as there was insufficient justification for such measures. Furthermore, Kehoe argued against the exclusion of psychiatric testimony based on hypothetical scenarios, but the court found no need for such evidence to impeach Gloria's credibility. Thus, the district court's decisions were upheld as within its discretion.

Kehoe argues that the district court wrongly admitted expert handwriting analysis testimony, which must be relevant and reliable per Daubert and Kumho Tire standards. The court has broad discretion in these determinations, and its decisions are reviewed for abuse of discretion. Although the government acknowledged a misstatement regarding the burden of proof, it clarified that it did not shift the burden to Kehoe. The expert, Carl McClary, has substantial experience, belongs to a professional organization, and adequately explained his methodology, leading the court to conclude that his testimony was reliable and beneficial for the jury.

Additionally, Kehoe raises multiple issues regarding jury instructions, which are also reviewed for abuse of discretion. He claims the court erred by not including his requested instruction on the necessity of corroboration for accomplice testimony. However, the court found sufficient corroborating evidence, negating the need for specific cautionary instructions. Kehoe further contends that the instructions failed to inform the jury about his inability to subpoena a witness and did not outline conspiracy elements. Since he did not object during the trial, these claims are assessed for plain error, which was not found.

Lastly, Kehoe alleges prosecutorial misconduct based on comments made during closing arguments regarding the credibility of Gloria Kehoe, suggesting she would have preferred to blame her husband for the murder rather than her son.

The defense failed to object to a statement during the trial, leading to the conclusion that the alleged error was not preserved for appellate review, as established in United States v. White. Reversal on this issue is only possible if the error is deemed "plain" and impacts substantial rights, according to Federal Rule of Criminal Procedure 52(b). The appellate court has discretion to correct such forfeited errors only if they significantly undermine the fairness or integrity of the judicial process, as noted in United States v. Olano. Although the prosecutor's comments may have improperly suggested the credibility of a witness, they did not constitute plain error per United States v. Jackson. Other points raised by Kehoe were found to lack merit. The judgment is affirmed. Additionally, a motion by the appellant to file a supplemental brief was denied.