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United States v. McNeill

filed: October 11, 1989.

UNITED STATES OF AMERICA
v.
JAMES P. MCNEILL, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal No. 88-00163.

Sloviter, Greenberg and Rosenn, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT Sloviter, Circuit Judge

I.

Appellant James P. McNeill appeals from his conviction following a jury trial of violation of 18 U.S.C. § 373(a), knowingly soliciting a person to commit a crime of violence, in this case the murder of McNeill's parole officer.

Because the offense took place after November 1, 1987, the Sentencing Reform Act was used in calculating McNeill's sentence. He was sentenced to a term of imprisonment of 96 months, a special assessment of $50.00, and to three years' supervision after release. The court denied McNeill's motion to reduce the range of sentencing because of what McNeill claimed was double factoring of the federal officer status of the intended victim.

McNeill filed a timely notice of appeal. On appeal, McNeill argues that there was insufficient evidence as a matter of law on which to base the conviction, that the trial court erred in limiting examination and cross-examination, and that he was subjected to double jeopardy in the application of the Sentencing Guidelines. We will consider each contention in turn.

II.

The solicitation statute under which McNeill was convicted provides,

(a) Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half of the maximum term of imprisonment or fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

18 U.S.C. § 373(a).

McNeill argues that the evidence of solicitation to commit a violent crime was insufficient to convict him. In reviewing a claim of insufficiency of the evidence after a guilty verdict, the court must view the evidence and the inferences logically deducible therefrom in the light most favorable to the government, to determine if there is sufficient evidence to support the factfinder's verdict. See Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Clapps, 732 F.2d 1148, 1150 (3d Cir.), cert. denied, 469 U.S. 1085, 83 L. Ed. 2d 699, 105 S. Ct. 589 (1984); United States v. United States Gypsum Co., 600 F.2d 414, 416-17 (3d Cir.), cert. denied, 444 U.S. 884, 62 L. Ed. 2d 114, 100 S. Ct. 175 (1979). "Only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict." Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir. 1970), cert. denied, 400 U.S. 1022, 91 S. Ct. 586, 27 L. Ed. 2d 634 (1971).

Inferences from established facts are accepted methods of proof when no direct evidence is available so long as there exists a logical and convincing connection between the facts established and the conclusion inferred. See United States v. Bycer, 593 F.2d 549, 551 (3d Cir. 1979). The fact that evidence is circumstantial does not make it less probative than direct evidence. Id.

The parties agree that to establish the crime of solicitation the government must prove by "strongly corroborative circumstances" that the defendant had the intent that another person engage in conduct constituting a crime described in Title 18, see United States v. Gabriel, 810 F.2d 627, 635-36 (7th Cir. 1987), and that the defendant actually commanded, induced or otherwise endeavored to persuade the other person to commit the felony, see United States v. Buckalew, 859 F.2d 1052 (1st Cir. 1988). See S.Rep. No. 225, 98th Cong., 2d Sess. 308 (1984), reprinted in 1984 U.S. Code Cong. & Admin.News 3182, 3488. "The phrase 'otherwise endeavors to persuade' is designed to cover any situation where a person seriously seeks to persuade another person to engage in criminal conduct." S.Rep. No. 97-307, 97th Cong. 1st Sess. 183-84 (1982).

The Senate Report lists examples of "strongly corroborating circumstances" that are "highly probative" of intent to solicit:

(i) the fact that the defendant offered or promised payment or some other benefit to the person solicited if he would commit the offense;

(ii) the fact that the defendant threatened harm or other detriment to the person solicited if he would not commit the offense;

(iii) the fact that the defendant repeatedly solicited the commission of the offense, held forth at length in soliciting the commission of the offense, or made express protestations of seriousness in soliciting the commission of the offense;

(iv) the fact that the defendant believed or was aware that the person solicited had previously ...


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