USA v. Ronald Scott Preacher

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 28, 2011
JOHN LEY
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-10492
Non-Argument Calendar
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D.C. Docket No. 4:09-cr-00054-SPM-WCS-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
RONALD SCOTT PREACHER,
lllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(January 28, 2011)
Before DUBINA, Chief Judge, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Ronald Preacher appeals his conviction for using a facility of

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interstate commerce with the intent that murder-for-hire be committed under 18
U.S.C. § 1958. On appeal Preacher argues: (1) that the district court erred in
determining that abandonment is not a valid defense under § 1958 and erred in
denying his proposed jury instruction on abandonment; and (2) because there was
sufficient evidence of abandonment presented at trial, the district court also erred
in denying Preacher’s motion for judgment of acquittal. For the reasons that
follow, we affirm.
I. Background
Ronald Preacher was angry at his close friend, Ralph Burton, for “stealing”
his girlfriend. Preacher threatened to kill Burton through a series of voicemails,
and offered money to another friend and coworker, David Moore, to do the job for
him. Moore refused the solicitation, so Preacher asked that he find someone to kill
Burton instead.
Moore informed Special Agent Zachary Coates about Preacher’s
solicitation. Under the FBI’s direction, Moore made a recorded call to Preacher
and told Preacher that he had found someone to do the job. Special Agent Ricky
Gibbs was directed to act as Moore’s hitman, going by the name of Rico. For
several days, the two exchanged a series of text messages and phone calls
regarding the hit. Preacher expressed fear of getting caught, but a desire to follow
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through with the plan nonetheless.
On July 29, Preacher told Moore that he had gotten the money together to
pay the hitman. Preacher stated that he had gone to his ex-girlfriend’s house the
night before and tampered with her car. That afternoon, Preacher left work and
returned with $1,250.00 in cash (the half payment expected up front) and photos
of Burton. Gibbs went to Preacher’s workplace to meet and take payment.
Preacher then told Gibbs he was afraid to go through with plan. He therefore
cancelled the deal. After Gibbs left, Preacher was arrested.
A federal grand jury indicted Preacher for using a facility of interstate
commerce with the intent that a murder-for-hire be committed in violation of 18
U.S.C. § 1958(a). Preacher proposed a jury instruction on the defense of
abandonment, claiming that he abandoned his effort to commit the crime and that
abandonment is a complete defense to § 1958. The government filed a motion in
limine to preclude the use of an abandonment defense and requested that a special
jury instruction be given explaining when a § 1958 offense is complete. The
district court made a finding that a § 1958 offense is complete once a defendant
uses a facility of interstate commerce with the requisite intent. The district court
then granted the government’s motion in limine and denied Preacher’s proposed
jury instruction, finding that a completed crime cannot be abandoned. After trial
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the jury returned a guilty verdict, and Preacher was sentenced to 36-months
imprisonment.
II. Discussion
A district court’s denial of a proposed jury instruction is reviewed for an
abuse of discretion. United States v. Westry, 524 F.3d 1198, 1216-17 (11th Cir.
2008). However, we review a district court’s determination of the availability of a
defense under a statute de novo. United States v. Thompson, 25 F.3d 1558, 1563
(11th Cir. 1994). Therefore we apply a de novo review to the district court’s
determination that abandonment is not a defense to § 1958 and refusal to give a
jury instruction in that regard.
Section 1958(a) prohibits:
travel[ing] in or caus[ing] another (including the intended victim) to
travel in interstate or foreign commerce, or us[ing] or caus[ing] another
(including the intended victim) to use the mail or any facility of
interstate or foreign commerce, with intent that a murder be committed
in violation of the laws of any State or the United States as consideration
for the receipt of, or as consideration for a promise or agreement to pay,
anything of pecuniary value.
18 U.S.C. § 1958(a). In order to get a conviction under this statute, the
government must prove that the defendant: (1) used or caused another to use any
facility of interstate or foreign commerce; (2) with the intent that a murder be
committed; (3) as consideration for a promise or agreement to pay anything of
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pecuniary value. 18 U.S.C. § 1958(a).
We have yet to address the issue of whether abandonment is a defense to a
charge under this statute, but we find instructive the Eighth Circuit’s discussion of
when a § 1958 offense is complete. In United States v. Delpit, 94 F.3d 1134,
1149-50 (8th Cir. 1996), the Eighth Circuit stated:
This statute is relatively straightforward, both in what it prohibits and in
what it does not reach. It does not prohibit murder or attempted murder.
Instead, it outlaws using interstate-commerce facilities with the intent
that murder-for-hire be committed. Once the interstate-commerce
facility is used with the required intent the crime is complete. One who
travels or causes another to travel in interstate commerce with the
necessary murderous intent need not do anything else to violate the
statute.
Id. We agree with the Eighth Circuit that once the defendant uses an instrument of
interstate commerce with the intent that a murder-for-hire be committed, the crime
is completed.1
Moreover, we conclude that once a crime is completed, it logically can no
longer be abandoned. Preacher used and caused Agent Gibbs to use an instrument
of interstate commerce, a cellular telephone, with the intent that an individual be
murdered for a price to be paid by Preacher. The first time that Preacher used his
Preacher attempts to distinguish himself from the defendant in Delpit by arguing that the1
indictment against him charges an ongoing crime, and therefore the crime cannot said to be
complete at the first instance he used his cell phone with the requisite intent. We need not
address this issue, however, because the indictment clearly charges a single crime occurring “on
or about” certain dates and not an ongoing crime.
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cell phone to communicate his desire that the victim be killed for money, he
violated § 1958. Abandonment only remains a defense to a completed crime if
Congress provides for such a defense in the statute. See, e.g., 18 U.S.C. § 373.
Because we hold that abandonment is not an affirmative defense to a
completed violation of § 1958, the district court appropriately declined to give
Preacher’s proposed jury instruction and properly denied his motion for a
judgment of acquittal. Accordingly, Preacher’s conviction is
AFFIRMED.
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