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United States v. Westmoreland

December 03, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GUY J. WESTMORELAND, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois. No. 98 CR 30022--William D. Stiehl, Judge.

Before Ripple, Rovner and Williams, Circuit Judges

The opinion of the court was delivered by: Ripple, Circuit Judge

ARGUED SEPTEMBER 12, 2002

Guy J. Westmoreland was indicted on five counts of a six-count multi-defendant indictment. He was charged with: causing the death of a person through use of a firearm during a drug trafficking crime; use of interstate commerce facilities to commit murder for hire; conspiracy to commit murder for hire; tampering with a witness by committing murder; and causing the death of a witness through use of a firearm. On June 28, 2001, a jury found Mr. Westmoreland guilty on all five counts.

Mr. Westmoreland previously had been convicted of conspiracy to distribute a controlled substance. *fn1 On October 25, 2001, the district court imposed sentences with respect to both convictions. Mr. Westmoreland was sentenced to 240 months' imprisonment on the previous drug conviction and to a term of life imprisonment without the possibility of parole on counts 2-6 of the later conviction. On October 26, 2001, Mr. Westmoreland filed a timely notice of appeal from his second conviction. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I.

BACKGROUND

Beginning in the spring of 1997, Mr. Westmoreland was a partner of Richard Abeln ("Abeln") in a drug distribution business. The two confederates used Abeln's plane to import nine kilograms of cocaine and about ninety pounds of marijuana from Texas to a small airport in Illinois. In early January 1998, they were arrested for the murder of Abeln's wife, Debra Abeln. Some months before, Abeln had decided to terminate his marriage; but, because he did not wish to split the assets of his $17 million trucking business with his wife, he decided to have her killed.

A few months later, Mr. Westmoreland happened to mention that he could have someone killed for $1,000. Abeln approached Mr. Westmoreland about such a possibility; after initially declining, Mr. Westmoreland agreed. Abeln testified that, to encourage Mr. Westmoreland to participate in the scheme, he had told Mr. Westmoreland that his wife had discovered their drug business and was going to inform law enforcement authorities.

Mr. Westmoreland recruited Deandre Lewis ("Lewis") to commit the murder. Abeln and Mr. Westmoreland agreed that the murder would occur on December 27, 1997, at a local airport and that it would be staged as a robbery gone bad. Lewis drove to the airport in a blue Dodge pickup truck provided by Mr. Westmoreland. On the pretext of changing a plane part, Abeln drove his wife to the airport; their twelve-year-old son, Travis, accompanied them. Upon their arrival, Lewis approached the car, demanded Mrs. Abeln's jewelry, then pulled her from the car and fired two shots from a double-barreled shotgun into her chest. She died at the scene.

At the time of the murder, Mr. Westmoreland was on vacation with his family in Florida; but, upon his return, he helped Lewis dispose of the jewelry. After his arrest on January 6, 1998, Mr. Westmoreland directed the destruction of evidence from his jail cell, including the removal of marijuana from a pinball machine at the Westmoreland's house. Tr.VIII at 135. Mr. Westmoreland's wife and sister proceeded to remove the drugs and destroy cocaine packaging. Id. at 137-39. Additionally, Mr. Westmoreland ordered his wife to arrange for the destruction of the murder vehicle, the blue Dodge pick-up truck, which directions his wife followed by having the truck crushed. Id. at 140-44.

II.

DISCUSSION

In this appeal, Mr. Westmoreland asks that we review several evidentiary issues that arose in the course of the proceedings in the district court.

A.

The district court admitted Mr. Westmoreland's statement to his wife, Bronnie Matthews, that he had supplied Abeln with the phone number of a hit-man. *fn2 The court based its ruling on the Government's representation that Mr. Westmoreland had repeated the statement to his parents and therefore the marital communications privilege was not applicable. Ms. Matthews later testified that her husband had not repeated the statement. Consequently, Mr. Westmoreland moved to strike the previously admitted statement and further moved for a mistrial. The ...


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