United States v. Guy J. Westmoreland

Citations: 312 F.3d 302; 2002 WL 31694775Docket: 01-3870

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

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Guy J. Westmoreland was indicted on five counts related to a multi-defendant case, including causing death through firearm use during drug trafficking, committing murder for hire, conspiracy to commit murder for hire, witness tampering through murder, and causing the death of a witness. A jury found him guilty on all counts on June 28, 2001. Previously, he had been convicted of conspiracy to distribute a controlled substance and was sentenced to 240 months for that offense. For the new convictions, the district court imposed a life sentence without parole on October 25, 2001. Westmoreland filed a timely appeal the following day.

Westmoreland's criminal activities began in 1997 when he partnered with Richard Abeln in a drug distribution operation, importing substantial quantities of cocaine and marijuana. Their involvement escalated to the murder of Abeln's wife, Debra Abeln, which was motivated by Abeln's desire to avoid splitting assets from his impending divorce. After initially declining, Westmoreland agreed to assist in the murder plot. He recruited Deandre Lewis, and they planned to stage the murder as a robbery. On December 27, 1997, Lewis executed the murder at an airport, while Westmoreland was on vacation. Following the murder, Westmoreland helped dispose of evidence and directed efforts to destroy incriminating materials, including drugs and the murder vehicle. In this appeal, he contends several evidentiary issues warrant review. The court affirmed the district court's judgment.

Mr. Westmoreland's statement to his wife, Bronnie Matthews, regarding supplying a hit-man's phone number was admitted by the district court despite his claim of marital communications privilege. The court ruled this privilege did not apply, citing the Government's assertion that Mr. Westmoreland had also disclosed this information to his parents. Ms. Matthews later testified that her husband did not make such disclosures to her parents, prompting Mr. Westmoreland to request the statement be struck and to seek a mistrial. The district court denied both motions, invoking the 'joint participant' exception to the marital privilege.

The review of the trial court's decision on marital privilege issues follows an abuse of discretion standard. The marital communications privilege is recognized in federal courts to protect private communications between spouses, allowing either spouse to assert it regarding confidential statements made during a valid marriage. However, an exception exists for communications related to joint criminal activity, as the law does not protect collusion between spouses.

In Mr. Westmoreland's case, he disclosed his involvement in a murder before Ms. Matthews engaged in any actions that would classify her as an accessory-after-the-fact. He argued that communications made before her involvement should be protected by the privilege. This specific issue has not been definitively resolved in this circuit, but comparisons to other circuits, such as the Second and Tenth Circuits, suggest that the privilege does not extend to statements made during ongoing joint criminal conduct. The Second Circuit ruled that a statement made before the spouse knew of any criminal act was protected, while the Tenth Circuit indicated that later activities as accessories could retroactively affect the privilege of earlier communications.

The Second Circuit's approach to the marital communications privilege is deemed most aligned with its intended purpose, distinguishing between the initial disclosure of a crime to a spouse and subsequent joint criminal activities. The initial communication about a crime is protected by the privilege. In contrast, the Fourth Circuit's ruling in United States v. Parker, which denied the privilege for statements made during the planning of joint criminal activity, is not directly addressed. Although the district court erred in admitting Mr. Westmoreland's initial communication with his wife, this error is considered harmless due to the overwhelming evidence against him from other witnesses and recordings. 

Additionally, the testimony of Tammy Sharp, Chris Sharp's wife, about her husband's involvement in a drug scheme and a murder cover-up was properly admitted under Federal Rule of Evidence 801(d)(2)(E), which allows co-conspirator statements as non-hearsay if made in furtherance of the conspiracy. The court found sufficient evidence supporting Sharp's participation in the conspiracy. Mr. Westmoreland's argument regarding the testimony's prejudicial nature was rejected, as the district court appropriately determined its relevance to the case, despite its gruesome details.

The record contains substantial unchallenged evidence, including direct testimony from co-conspirators, indicating that any potential error in admitting Tammy Sharp's testimony was harmless. The district court allowed the admission of four recorded conversations between Mr. Westmoreland and Abeln, initiated by the Illinois State Police, which implicated Westmoreland in Abeln's death. Westmoreland argued that the absence of Agent Lewis’ testimony undermined the foundation for the tapes' admission; however, the court relied on the testimonies of Agents Milkovich and Dye, finding no abuse of discretion in admitting the tapes. Westmoreland also raised concerns about Agent Milkovich referring to the tapes as "first generation copies," but Federal Rule of Evidence 1003 permits the admission of duplicates unless authenticity is questionable. 

Additionally, the court admitted a letter allegedly authored by Bronnie Matthews, claiming it demonstrated a pattern of conduct by Westmoreland and his family in obstructing justice. While Westmoreland contended the letter was not relevant under Federal Rule of Evidence 401, the Government argued it supported allegations of his family's destruction of evidence. The court noted the letter’s admission lacked a clear basis, as its true authorship was unestablished and there was no proof that Westmoreland authorized its presentation. Nonetheless, the court agreed that admitting the letter constituted harmless error due to overwhelming evidence of Westmoreland's guilt.

Furthermore, the Assistant United States Attorney indicated that Agent Lewis would testify about an incident involving Westmoreland, Sharp, and a drug debt. The court rejected Westmoreland's claim that this testimony violated Federal Rule of Evidence 404(b), allowing the jury to infer that the trip was part of their drug conspiracy. Lastly, Westmoreland sought to exclude evidence related to drug trafficking conspiracy and drug quantity, but the court determined that the charges of using a firearm during a drug trafficking offense and the murder of a federal witness were closely linked to the drug evidence presented.

The district court properly admitted evidence related to Mr. Westmoreland's involvement in a drug conspiracy, as testimonies from co-conspirators Abeln and Lewis indicated that Westmoreland had a motive to orchestrate the murder of Debra Abeln to safeguard the conspiracy. Consequently, the court did not abuse its discretion in allowing extensive testimony about the drug conspiracy. The judgment of the district court is affirmed. Notably, Westmoreland's prior conviction was upheld in a previous case, and at the time of the events, he was married to Bronnie Westmoreland, who later became Bronnie Matthews after their divorce. The document recognizes two marital privileges: the marital testimonial privilege and the marital communications privilege, with Westmoreland's arguments focusing on the latter. The Government did not contend that Ms. Matthews was part of the drug conspiracy or that the murder was in furtherance of it. Additionally, expert testimony regarding the letter's authenticity was ruled collateral to Matthews' assertion that she did not author the letter, making its admission improper under Rule 608(b), which prohibits the use of extrinsic evidence to challenge a witness's credibility.