Appeals from the United States District Court for the Eastern District of Wisconsin. No. 82 CR 109 -- Robert W. Warren, Judge.
Cummings, Chief Judge, Bauer and Coffey, Circuit Judges.
Appellants, Tony Fish and Ramon Torres, appeal their convictions for second degree murder in violation of 18 U.S.C. §§ 1111, 1153 (1982), conspiracy to commit murder in violation of 18 U.S.C. §§ 1117, 1152 (1982), and kidnaping in violation of 18 U.S.C. §§ 1201, 1153 (1982). We affirm.
The record reveals that on the afternoon of July 29, 1982, Daniel Rothering met appellant Ramon Torres, and his sister, Anita Torres, in Reedsville, Wisconsin. Rothering, at that time, sold a quantity of "pot" and "fronted . . . a hundred hits of acid" to Ramon Torres.In return, Torres invited Rothering to attend the Blue Grass music festival being held in Mole Lake, Wisconsin, the following day. Rothering accepted the invitation and accompanied Torres and his sister to the Menominee Indian Reservation where they visited appellant, Tony Fish, and his wife, Theresa Fish. Following a visit where everyone "just sat around," Torres, his sister Anita, and Rothering left Fish's house and proceeded to a local gas station where they purchased a quantity of beer. Torres then returned to pick up Fish and his wife, Theresa, and the group of five drove to Diane Thunder's house, located on the Menominee Indian Reservation in Keshena, Wisconsin. When they arrived at Thunder's house, the group was joined by Ricky Fisher (a/k/a Ricky Katchenago) and Laurie Penass, who was visiting Thunder at the time. While at Thunder's house, members of the group consumed beer, "snorted" crystal methamphetamine (a controlled substance), and smoked sinsemilla, a refined grade of marijuana. The entire group eventually settled in the front room of Thunder's house, and at that time Ramon Torres displayed to members of the group, a knife that he had recently purchased.
At approximately 1:00 a.m. on the morning of July 30, 1982, the group of seven (consisting of Torres, his sister Anita, Fish, his wife Theresa, Rothering, Fisher, and Penass) left Thunder's house, loaded into Torres' Camero, and proceeded to Martin's Lodge, a local tavern in Keshena, Wisconsin. The group purchased a case of beer and remained in the tavern's parking lot consuming the alcohol. At approximately 1:30 a.m., Officer Miller of the Menominee Tribal Police Force responded to a complaint that loud noises were emanating from the parking lot of Miller's Lodge. When Officer Miller arrived at the tavern, he observed appellants Fish and Torres along with five other individuals, standing around Torres' Camaro. Officer Miller instructed the group to leave the parking lot or go inside the tavern. The group purchased "some more beer," piled into Torres' car, and drove five or six miles to a wayside rest area located on Highway 47 in Shawno County, bordering the Menominee Indian Reservation. After arriving at the wayside and consuming more beer, members of the group vandalized the premises by breaking the handle off a water pump and tipping over a metal housing that covered the water well.
Following these acts of vandalism, an automobile traveling along Highway 47 pulled off the roadway and into the wayside. The appellants, Fish and Torres, approached the vehicle and observed that the driver was alone at the time. As Fish began to speak with the driver, Torres returned to the other members of the group and informed them that, "We are going to rip this guy off." Fish and Torres forcibly removed the driver, later identified as Thomas Peterson, from his vehicle, and proceeded to overpower him. Torres removed a blue windbreaker from Peterson and tied it over his head, while Fish used shoe laces to tie Peterson's hands behind his back. During this period, Ricky Fisher jumped on the hood of Peterson's vehicle and began smashing the windshield.Danny Rothering used the knife that Torres had displayed earlier in the evening at Diane Thunder's house to slash the vehicle's tires. Certain members of the group entered the vehicle, seized the radio and other valuable items, and placed them all in Torres' Camaro. Following the theft of these items from Peterson's vehicle, appellant Fish stated "Let's get rid of him." Fish, Torres, and Rothering tossed the bound and blindfolded Peterson into the back seat of Torres' Camaro, entered the automobile themselves, and traveled north on Highway 47.
Torres drove his automobile approximately a mile to a mile and a half north on Highway 47 to Camp 24 road, a dirt-covered logging road located on the Menominee Indian Reservation. Torres turned onto the dirt road, heading east, and as he followed the winding road through the wooded Reservation, Rothering asked the still bound and blindfolded Peterson if he had any money. When Peterson failed to respond, Rothering twice punched Peterson in the face. Torres continued down the dirt-covered road for about five or six miles until he reached that area of the Indian Reservation where the Napone Bridge crosses the Little West Branch of the Wolf River. At that point Fish, Torres, and Rothering exited Torres' automobile, removed Peterson from the back seat, and laid him on the dirt-covered logging road. Fish tied a cloth around Peterson's neck and appellants Fish and Torres, along with Rothering, pulled on the cloth thereby strangling Peterson as they dragged him along the dirt road. The cloth broke and Peterson's body went limp. Fish and Torres lifted the limp body and carried it into a wooded area where Fish gave instructions to stab the bound and blindfolded Peterson. Rothering used the knife that Torres had displayed earlier in the evening at Diane Thunder's house and stabbed the rear calf on each of Peterson's legs. Appellants Fish and Torres carried the bleeding and limp Peterson to the edge of the Wolf River and dumped him into the water so that his torso and head were submerged but his legs remained on shore. Fish placed his foot on Peterson's head in order to keep the head submerged under water and gave instructions to "stab him." Torres took the knife from Rothering and stabbed Peterson twice in the stomach. Peterson's body was then pushed out into the flowing water of the Wolf River.
Fish, Torres, and Rothering returned to Torres' Camaro, and after making a U-turn on the other side of the Napone Bridge, Torres proceeded west on Camp 24 road toward Highway 47. After traveling "a little ways down" the dirt-covered road, Torres stopped the automobile so that he could "get rid of the gloves" that he and Fish had been wearing during the attack of Peterson. Torres and Rothering buried the blood-stained gloves, a sheath containing the knife used to stab Peterson, and the various items stolen from Peterson's automobile in a nearby tree stump and covered the area with dirt. Fish, Torres, and Rothering then exited the Menominee Indian Reservation, returned to the wayside, and picked up the other four members of the group. Upon entering Torres' automobile, Laurie Penass noticed that Fish, Torres, and Rothering all had blood stains on their clothers.
Torres drove the entire group to Fish's residence, located on the Menominee Indian Reservation in Zor, Wisconsin, and after their arrival, Fish, Torres, and Rothering changed out of their blood-stained clothes. Later that morning Fish instructed Rothering to "[g]et rid of [his] clothes. Just say we were riding around drinking beer." Torres' sister, Anita, instructed Laurie Penass not to "say anything now, because everybody is afraid that you are the only one that's going to say something."
At approximately 6:00 a.m. on the morning of July 30, 1982, Officer Snow of the Menominee Tribal Police Force received a radio dispatch from Officer Bovene to proceed to the wayside on Highway 47, where Officer Bovene and two members of the Menominee Sheriff's Department had discovered Peterson's abandoned and vandalized automobile. Upon his arrival, Officer Snow was instructed to search Camp 24 road on the Menominee Indian Reservation, in the area of the Napone Bridge. Snow proceeded to the bridge and at approximately 8:00 a.m., he detected a blue object that had become "snagged" in the Wolf River, about one hundred yards downstream from the Napone Bridge. Upon closer examination, Officer Snow believed the object to be a human body with hands tied behind the back and a blue windbreaker covering the head. Snow immediately returned to his squad car and radioed for assistance. When additional officers arrived at the scene, the body was removed from the Wolf River and sealed in a plastic body bag. Later that evening, Dr. Huntington, a professor of pathology at the University of Wisconsin-Madison Medical School, performed an autopsy and determined that the person, a Caucasian identified by the Federal Bureau of Investigation as a Thomas Peterson, died of "multiple modes of homicidal assault." Dr. Huntington listed those modes specifically as "[b]lunt injury, drowning while restrained, deep cutting in the abdomen, and strangulation." Dr. Huntington stated that due to the amount of water and debris in the victim's lungs, Peterson was still alive when he was submerged beneath the water.
On August 25, 1982, a Federal Grand Jury returned a three count indictment against Tony Fish and Ramon Torres for first degree murder in violation of 18 U.S.C. §§ 1111, 1153, conspiracy to commit murder in violation of 18 U.S.C. §§ 1117, 1152, and kidnaping in violation of 18 U.S.C. §§ 1201, 1153.*fn1 Following a trial in the United States District Court for the Eastern District of Wisconsin, the jury found appellants Fish and Torres guilty of conspiracy to commit murder, kidnaping, and the lesser included offense of second degree murder. The trial judge entered judgments of conviction and sentenced each appellant to three consecutive terms of life imprisonment. On appeal, Fish and Torres contend that the ...