127.

Sample Trial Brief—Conspiracy in violation of 18 U.S.C. § 371—18 U.S.C. § 245—18 U.S.C. § 924(c)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION UNITED STATES OF AMERICA, Criminal No. 5:95- CR-017-C Plaintiff v. ELI MUNGIA, RICKY MUNGIA, ROY RAY MARTIN, Defendants ________________________________________ UNITED STATES' TRIAL BRIEF On February 14, 1995, the Grand Jury returned a nine count indictment against defendants Roy Ray Martin, Ricky Mungia and Eli Mungia. The charges arise out of their attempt to start a race war in Lubbock on October 16, 1994 by hunting for and shooting blacks who were using the streets of Lubbock. This trial brief is submitted for the assistance of the Court. SUMMARY OF THE FACTS The defendants share at least two things in common, an intense hatred of blacks and a willingness to act on this racism and use violence to drive blacks out of Lubbock. On the evening of October 16, 1994, the defendants met at the residence of defendant Martin, and discussed their mutual hatred of blacks. Specifically, defendant Martin, a skinhead who bragged about being affiliated with the "South Bay Nazi Youth" when he lived in California, and defendants Ricky and Eli Mungia discussed how they hate "niggers" and "coons," how they wish they never existed, how good life would be without them, and how "the only good nigger was a dead nigger." They also discussed starting a revolution in which they would kill "niggers" and "coons." At one point during this discussion, the defendants went out to the backyard of the residence, and defendant Eli Mungia fired one round from the sawed off .410 shotgun that he had brought with him that evening. They then returned inside and continued their conversation about their hatred of blacks. At approximately 11:15 or 11:20 p.m., the defendants left Martin's residence in a 1982 white Toyota Corolla belonging to defendant Eli Mungia to "take care of some business." Defendant Martin, who was planning to purchase the car, was the driver, while defendant Eli Mungia sat in the front passenger's seat, and defendant Ricky Mungia sat in the driver's side back seat. Defendant Eli Mungia brought his sawed-off shotgun along with him, and the defendants began hunting for blacks to shoot in an effort to begin the race war by ridding the streets of Lubbock of all blacks. The defendants then drove around Lubbock and, in a 20-25 minute rampage, shot three black men in separate locations. Each victim was simply walking along or near the streets or sidewalks of Lubbock. The defendants first proceeded to the vicinity of Eighth Street and Avenue U, where Autry Vaughn was walking along the sidewalk. They pulled over to the side of the street, and motioned for Mr. Vaughn to approach their vehicle. They asked Mr. Vaughn whether he "wanted to buy some candy." As Mr. Vaughn was standing next to the front passenger's side door, defendant Martin reached across the car and shot Mr. Vaughn in the face with the sawed-off shotgun. The defendants then drove away, and headed toward the east side of town. Fortunately, a number of witnesses heard the shotgun blast and observed a white car matching the description of the defendants' car leaving the scene. One of the witnesses called the 911 operator at 11:34 p.m. to report the shooting. Miraculously, Mr. Vaughn survived the blast, although he had to undergo delicate surgery to repair his facial injuries, and he sustained a fractured vertebrae in his neck. After reaching the east side, the defendants continued hunting for blacks who were using the streets of Lubbock. As they drove southbound on Martin Luther King Blvd, they observed Melvin Johnson, a black male who was walking away from a convenience store and toward the street. The defendants pulled over and flagged down Mr. Johnson, who approached the front passenger's side of the vehicle. As Johnson was standing near the front passenger's side of the vehicle, defendant Eli Mungia shot and killed him. The force of the blast killed Johnson in his tracks, and the defendants then proceeded further south on Martin Luther King Boulevard. Once again, witnesses observed a white car matching the general description of the defendants' car near the scene of the Johnson murder. It was now defendant Ricky Mungia's turn to shoot someone, and the defendants proceeded southbound on Martin Luther King Blvd., where they observed Triellis Stewart and his cousin walking along the street. The defendants lured Stewart over to the car and then asked him if he knew where they could purchase some cocaine. When Stewart, who was standing near the driver's side rear door, responded that he did not know, defendant Ricky Mungia shot him. Fortunately, Stewart observed the shotgun a split second before the blast, and was able to jerk away. The blast struck him in the right hand, and ultimately resulted in the amputation of his right pinky finger. Stewart and his cousin fled from the scene, and ran to a convenience store where they summoned help. Eyewitnesses observed a white car matching the description of the defendants' car leaving the scene of the crime, and Stewart identified Ricky Mungia from a photospread as the shooter. The final shooting occurred at approximately 11:55 p.m., so that the three shootings occurred within roughly a 20 minute interval. After the final shooting, the defendants returned triumphantly to Martin's residence and bragged about the shootings. They then left the residence, along with Michael Lingo, who was a friend of defendant Martin, and drove to a nearby convenience store. At the convenience store, a Lubbock police officer, who had a description of the car, spotted the car and approached the defendants. Upon further investigation, the defendants were arrested approximately 70 minutes after the final shooting. The loaded .410 shotgun was recovered under the front passenger's seat where defendant Eli Mungia was located. Defendant Eli Mungia had two unspent .410 rounds in his pocket, and other ammunition was recovered from the car. In addition to the eyewitness testimony outlined above, there is substantial physical evidence linking the defendants to the crimes. For example, as noted above, the loaded sawed off .410 shotgun was recovered at the time of arrest, and the medical evidence will establish that all three victims were shot by a shotgun. As a result of the close range of the shootings, wadding from a .410 round was embedded in the wound areas of victims Vaughn and Johnson. A spent .410 round was recovered from the ground between the scene of the second and third shootings, and ballistics tests will prove that it was fired from the defendants' shotgun. Lead composition analyses performed on the pellets obtained from victims Vaughn and Johnson, as well as pellets obtained from one of the unspent .410 rounds seized at the time of arrest, will establish that these rounds originated from the same box or boxes of the same type and manufacturer, and were packaged on or about the same date. DNA test results will establish that blood consistent with each victim was discovered on the defendants' car, and that blood consistent with Triellis Stewart was found on the clothing of defendants Martin and Ricky Mungia. Following the defendants' arrest, the Lubbock Police Department obtained a search warrant for defendant Martin's residence. The officers recovered the spent .410 round from the shot that defendant Eli Mungia fired in the backyard of the residence earlier on October 16, 1995. The officers also seized a photograph of Hitler, a swastika and a Nazi flag. THE INDICTMENT The indictment contains nine counts. Count one charges a conspiracy in violation of 18 U.S.C. § 371. Counts two, four and six charge violations of 18 U.S.C. § 245. Counts three, five and seven charge violations of 18 U.S.C. § 924(c) in connection with the defendants' use of the sawed off shotgun during the commission of the crimes. Count eight charges the defendants with possession of an unregistered firearm, while count nine charges Ricky Mungia with being a felon in possession of a firearm. SUMMARY OF THE LAW Counts Two, Four and Six --18 U.S.C. § 245(b)(2)(B)[FN1] FN1. Count one charges a conspiracy to violate 18 U.S.C. 𨵍. The elements of the conspiracy count are discussed later in this brief. Section 245 of Title 18, United States Code, provides in pertinent part: (b) Whoever...by force or threat of force willfully injures, intimidates or interferes with or attempts to injure, intimidate or interfere with (2) any person because of his race [or] color...and because he is or has been -- participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof [is guilty of an offense against the United States]. Five elements must be established in order to prove a felony violation of this statute. First: The defendants must have used force or the threat of force. Second: The actions of the defendants must have injured, intimidated, or interfered with the named victim. Third: The defendants must have acted because of the victim's race or color, and because he was participating in or enjoying a facilityprovided or administered by a subdivision of a State, in this case the streets and sidewalks of Lubbock, Texas. Fourth: The defendants must have acted willfully. Fifth: The actions of the defendants resulted in bodily injury to the named victim. In count four, the actions of the defendants must have resulted in the death of Melvin Johnson. Force or Threat of Force The term "force" includes the exercise and application of physical power other than the power of oral or written speech. For purposes of section 245, force means power, violence, compulsion, or restraint exerted upon a person. Force may be proven by finding that the defendants committed any form of violence against the victim, such as shooting the victim. In the present case, the United States will prove that the defendants, aiding and abetting each other, took turns shooting at black men who were using the streets or sidewalks of Lubbock. Injury, Intimidation or Interference It is necessary to show that the defendants injured, interfered with or intimidated, or attempted to injure, interfere or intimidate, or aided and abetted in injuring, intimidating or interfering with the named victims. The words "injure," "interfere with," and "intimidate" have no technical meaning, but are to be understood in their ordinary meaning and cover a variety of conduct intended to harm or frighten other persons. 1968 U.S. Code Cong. and Admin. News 1837, 1838-40, 1843, 1845. Injury will not be at issue, as the United States will prove that one victim died, and two others were seriously injured as a result of the defendants' actions. Specific Intent The United States must prove that each defendant injured or intimidated the victim because of his race or color. In addition, it is necessary to show that the defendants' actions were also based on the fact that the victim was participating in or enjoying a facility provided or administered by a subdivision of a state, in this case, the streets and sidewalks of Lubbock, Texas. United States v. Franklin, 704 F.2d 1183, 1192 (10th Cir. 1983). Given the existence of the defendant's motive to interfere with each victim's enjoyment of a facility because of the victim's race or color, the presence of other motives, such as personal anger, does not make the defendants' conduct any less a violation of 18 U.S.C. § 245. United States v. Ellis, 595 F.2d 154 (3rd Cir.), cert. denied, 444 U.S. 838 (1979); Griffin, 525 F.2d 710. The evidence will show that each defendant participated in the shootings precisely because of the victims' race and because the victims were enjoying the streets and sidewalks of Fort Worth. This intent is evident not only from the defendants' actions but from the racial slurs and remarks in which they discussed starting a race war in Lubbock. In addition, each of the three victims had two things in common: they were black and were using the streets and/or sidewalks of Lubbock. This pattern is not a coincidence, but rather is probative of the defendants' intent to drive the victims from the streets and neighborhoods of Lubbock on account of their race. The Indictment charges that the defendants interfered with each victim's use of a "facility" administered by a subdivision of a State. The determination of whether the streets and sidewalks of Lubbock are "facilities administered by a subdivision of a State" is a mixed question of law and fact and both the Court and the jury have roles to play in making that determination. In analogous situations dealing with mixed questions of law and fact, the court instructs the jury that if they believe the witnesses who testified regarding the disputed issue, then they may find that the government has met its burden with respect to that issue. See United States' Proposed Jury Instruction. In other words, the jury makes a credibility determination, while the Court determines whether, assuming the truth of the witnesses' testimony, the government has met its burden as a matter of law.[FN2] FN2. See e.g. United States v. Piche, 981 F.2d 706, 716 (4th Cir. 1992)(whether incident occurred in "place of entertainment" mixed question of law and fact; jury to determine whether witnesses believable and judge to determine whether testimony met standard for place of entertainment); United States v. Summers, 589 F.2d 450 (5th Cir. 1979)(approving instruction that if jury believed witnesses beyond a reasonable doubt, then crime did affect commerce); United States v. Hooper, 575 F.2d 496, 497 (5th Cir. 1978); United States v. Hayes, 535 F.2d 479, 482 (8th Cir. 1976)(approving instruction which stated that if defendant received firearm that had traveled across state lines, then receipt affected commerce). A facility is anything "built, installed, or established to serve a purpose" or "something that makes easier an action, operation, or course of conduct." The Merriam-Webster Dictionary, p. 257 (1974 ed.). The government will present witnesses who will testify that the streets and sidewalks of Lubbock are constructed, maintained, and administered by the city of Lubbock, a part of the State of Texas. Therefore, the evidence will be sufficient to establish as a matter of law that the streets and sidewalks of Lubbock are facilities provided and administered by a subdivision of a State. It will be left for the jury to decide whether the witnesses who will be testifying to this issue are credible. Willfulness An act is done willfully if it is done voluntarily and purposely. Specific intent may be established from all the facts and circumstances surrounding the case. Price, 464 F.2d 1217, 1218 (8th Cir. 1972). It is not necessary for the government to prove that the defendant was aware that a law such as 18 U.S.C. § 245 exists. United States v. Griffin, 525 F.2d 710, 712 (1st Cir. 1975). It is enough to show, as the evidence will establish, that each defendant purposefully did certain acts with the intent to interfere with or intimidate the victims because they were black and because they were enjoying the streets and sidewalks of Lubbock. Bodily Injury 18 U.S.C. § 245 provides for increased punishment if the evidence proves that bodily injury or death resulted from the unlawful conduct of the defendant. This "resulting" language does not require a showing that the defendant intended by his actions to injure the victim. Rather, in order to satisfy this requirement and trigger the felony provision of the statute, the United States need only prove that the injury came about as a foreseeable consequence of the unlawful acts of the defendant. See United States v. Hayes, 589 F.2d 811, 821 (5th Cir. 1979)("if death results" does not mean "if death was intended"). The term "bodily injury" is not defined in § 245. However, that phrase is defined in a similar manner throughout Title 18 to include "physical pain" and other types of injuries. See 18 U.S.C. §§ 831, 1365, 1515, and 1864. In United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992), the court approved an instruction defining "bodily injury" to include "physical pain" as well as other injuries no matter how temporary. In this case, the evidence will establish that the defendants, aiding and abetting each other, shot three victims during a 20 minute interval, seriously injuring Autry Vaughn and Triellis Stewart, and killing Melvin Johnson. Count One--Conspiracy, 18 U.S.C. § 371 In Count One of the Indictment, the defendants are charged with conspiring to violate 18 U.S.C. 𨵍, in violation of 18 U.S.C. § 371. That statute provides, in pertinent part, as follows: If two or more persons conspire... to commit any offense against the United States,... and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than [$250,000] or imprisoned not more than five years, or both. The offense which the defendant is charged with conspiring to commit is using force or threat of force to interfere with black persons using the streets and sidewalks of Lubbock because of their race or color, in violation of 18 U.S.C. § 245(b)(2)(B). There are three elements which must be established to prove this offense: The defendant agreed with another person to commit the crime alleged in the Indictment, that is, that the defendant, with at least one other person, agreed to injure, intimidate, or interfere, by force or threat of force, with black individuals in order to prevent them from enjoying and participating in the use of the streets and sidewalks of Lubbock, Texas because of their race and color, which resulted in bodily injury to Autry Vaughn and Triellis Stewart, and resulted in the death of Melvin Johnson; The defendant knew the unlawful purpose of the conspiracy and joined it willfully, that is, with the intent to further the unlawful purpose; One of the conspirators thereafter knowingly committed at least one of the overt acts charged in the Indictment in order to accomplish some object of the conspiracy. United States v. Bordelon, 871 F.2d 491, 493 (5th Cir.), cert. denied, 493 U.S. 838 (1989); Fifth Circuit Pattern Jury Instructions, 2.21 (1990). Agreement A conspiracy is a combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. Thus, a conspiracy is a kind of partnership in criminal purposes in which each member becomes the agent of every other member. The gist of the offense is a combination or agreement to violate or disregard the law. Pereira v. United States, 347 U.S. 1, 11 (1954). The agreement between the co-conspirators need not be express or formal, but may be inferred by the defendants' conduct. See Direct Sales v. United States, 319 U.S. 703, 714 (1943). In order to establish that the conspiracy existed and was willfully formed, as required by the first element of the offense, the evidence must show that the conspirators, either expressly or tacitly, came to a mutual understanding to try to accomplish a common and unlawful plan.Ordinarily, only the results of a conspiracy, rather than the agreement itself, are observable. The existence of the conspiracy need not be proved by direct evidence but may be inferred from all of the facts and circumstances of the case. United States v. Vergara, 687 F.2d 57, 61 (5th Cir. 1982). A common purpose and plan may be inferred from "a development and collocation of circumstances." Glasser v. United States, 315 U.S. 60, 80 (1942). See United States v. Morado, 454 F.2d 167, 174 (5th Cir.), cert. denied, 406 U.S. 917 (1972). Thus, the United States may rely upon circumstantial evidence of a tacit or mutual understanding underlying the actions of the defendants to prove the existence of the agr eement. Traditionally, courts look to the conduct of the alleged conspirators to find proof of the agreement. See Morado, 454 F.2d at 174. In this case, the evidence will show that the defendants discussed their mutual hatred of blacks, and their desire to start a race war against blacks. They then formulated a plan to shoot black individuals whom they observed using the streets and sidewalks of Lubbock. The existence of this conspiracy is evidenced by the numerous overt acts that were committed, the defendants' statements, and their joint conduct. The Defendants Willfully Joined the Conspiracy. The evidence must also show that each defendant knowingly and willfully participated in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy. To participate knowingly and willfully means to participate voluntarily and with the specific intent to do some act which the law forbids. See United States v. Feola, 420 U.S. 671, 686-687 (1975) (intent for conspiracy is same as criminal intent required for underlying offense). If a defendant, with understanding of the unlawful character of a plan, intentionally encouraged, advised, or assisted for the purpose of furthering the undertaking or scheme, he thereby became a knowing and willful participant and co-conspirator. An Overt Act Was Committed in Furtherance of the Conspiracy. The third element requires proof that one or more of the co-conspirators knowingly committed one or more of the overt acts alleged in the Indictment in furtherance of the conspiracy. It is not necessary that the conspirators succeed in accomplishing their purpose and, in fact, they may have failed in so doing. United States v. Cuni, 689 F.2d 1353, 1356 (11th Cir. 1982). In addition, the United States is not limited to proving the overt acts alleged in the Indictment but can show any act of the conspirators occurring during the life of the conspiracy for the purpose of proving it. Reese v. United States, 353 F.2d 732, 734 (5th Cir. 1965). The overt act need not be criminal in nature if considered separately and apart from the conspiracy. Direct Sales, 319 U.S. at 714. The conspiracy charged in the Indictment lists several overt acts which were committed by one or more of the defendants during the course of the conspiracy. The evidence will show that each of the overt acts specified in the Indictment was knowingly committed by at least one of the co-conspirators in order to accomplish their illicit purpose to intimidate and interfere with black individuals using the streets and sidewalks of Lubbock. Counts Three, Five and Seven - 18 U.S.C. 𨿴(c) For each shooting, the defendants are charged with one count of violating 18 U.S.C. 𨿴(c). Title 18, United States Code, Section 924(c) provides in pertinent part: Whoever, during and in relation to any crime of violence or drug trafficking crime...for which he may be prosecuted in a court of the United States, uses or carries a firearm [shall be guilty of an offense against the United States]. The United States must prove that the defendant used a firearm, or aided and abetted another person in the use of a firearm during the commission of a crime of violence that is prosecutable in a United States court. The crimes of violence referenced in counts three, five and seven are the violations of 18 U.S.C. 𨵍 that are charged in counts two, four and six, respectively. The question of whether the crimes charged counts two, four and six, that is, 18 U.S.C. § 245, are crimes of violence is a matter of law for the Court to decide. From the plain language of section 245, it is obvious that a violation of section 245 is a crime of violence for purposes of section 924(c). Count Eight - Possession of Unregistered Firearm - 18 U.S.C. § 5861(d) In count eight, the defendants are charged with possession of an unregistered firearm. 26 U.S.C. �(d) provides that "It shall be unlawful for any person to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." The United States will prove that the defendants were in possession of the sawed off .410 shotgun, and that the shotgun was not registered to them. Count Nine - Felon In Possession - 18 U.S.C. § 922(g)(1) In count nine, defendant Ricky Mungia is charged with being a felon in possession of a firearm. 18 U.S.C. 𨿲(g)(1) provides in pertinent part as follows: It shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to possess in or affecting commerce a firearm.. The United States will establish that on or about October 16, 1994 and October 17, 1994, defendant Ricky Mungia, who had prior felony convictions for robbery and burglary, possessed in and affecting commerce, the .410 shotgun that the defendants used during the shootings in question. Aiding and Abetting In counts two through eight, the defendants are charged with aiding and abetting one another in the commission of the various offenses associated with the three shootings. As the Court is well aware, under 18 U.S.C. § 2, a defendant need not have been the actual shooter to be criminally responsible for a particular shooting. The evidence will show that the defendants aided and abetted each other in the commission of the charged offenses. LEGAL ISSUES Voir Dire As the Court is well aware, the prosecution and the defense are forbidden from using race as a basis of striking potential jurors. Georgia v. McCollum, 112 S.Ct. 2348 (1992). In order to preserve any Batson challenges that the United States may make in this case, the United States respectfully requests that the Court direct all potential jurors who are struck pursuant to peremptory challenges to remain in the courtroom until the conclusion of jury selection. Testimony of Detective Roy Pierce Roy Pierce is a detective with the Lubbock Police Department, and was one of the detectives who was involved in the investigation of the shootings. He prepared reports summarizing his involvement in the investigation, and these reports have been turned over to the defense long ago. On July 4, 1995, Detective Pierce was married to Tanya Northrup. The two did not begin a relationship until over five months after Detective Pierce's involvement in the incident in question, and were no more than professional acquaintances at the time of the shootings. The United States has received indications that the defendants may attempt to attack this relationship in their questioning of Detective Pierce. There is nothing to attack, as Detective Pierce will simply describe the events set forth in his reports, which were prepared long before their relationship began. The United States intends to elicit the aforementioned facts during the direct examination of Detective Pierce, and requests that the Court take appropriate measures to prevent repetitive and improper cross examination of Detective Pierce. CONCLUSION The United States submits this Trial Brief for the assistance of the Court. Respectfully submitted this _____ day of ________, 1995. PAUL E. COGGINS DEVAL L. PATRICK UNITED STATES ATTORNEY ASSISTANT ATTORNEY GENERAL ________________________ _________________________ TANYA K. PIERCE THOMAS E. PEREZ DENISE WILLIAMS Deputy Chief Criminal Section P.O. Box 66018 Washington, D.C. 20035 Telephone: 202-514-4074 [cited in Civil Rights Resource Manual 60]