United States of America v. James Timothy Norman

United States Court of Appeals
For the Eighth Circuit
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No. 23-1473
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United States of America
Plaintiff - Appellee
v.
James Timothy Norman
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 10, 2024
Filed: July 9, 2024
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Before BENTON, ERICKSON, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
James “Tim” Norman orchestrated the murder of his nephew and then tried to
cash in on a fraudulent insurance policy on his life. A jury convicted Norman of
conspiring to commit murder for hire and murder for hire, 18 U.S.C. § 1958, and of

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conspiring to commit mail and wire fraud, §§ 1349, 1341, 1343. He appeals,
challenging several of the district court’s1 trial rulings. We affirm.
I.
Andre Montgomery was going nowhere fast in Texas when his uncle invited
him back to St. Louis to “teach him how to be a man.” Norman set Andre up in a
nice apartment, put him in music school, and got him a job at the family restaurant,
Sweetie Pie’s—the subject of a reality TV show. But his goals were not altogether
noble. Norman also worked with insurance agent Waiel Yaghnam to apply for
several life insurance policies on Andre. He wanted them quickly and without his
nephew’s involvement or knowledge. Only one went through, and it set Norman up
for a $450,000 payout on Andre’s death.
It soon became clear that Norman’s lessons in manhood weren’t going to plan.
Andre dropped out of school, stopped showing up to work, and left his apartment.
Things came to a head in June 2015 when someone broke into the home of Robbie
Montgomery, matriarch and owner of Sweetie Pie’s. Robbie suspected her grandson
Andre and wanted him to take a polygraph to prove his innocence. But fearing that
Norman was after him, he had skipped town.
In September, Yaghnam peddled a new life insurance policy with one catch:
Norman had to wait six months before he could be listed as the policyowner.
Norman was not interested because Andre “might not make it six months.”
Yaghnam kept pestering him to call the insurance companies for recorded
interviews, but Norman didn’t want to be on tape. “[S]hit has changed,” he wrote,
and Andre “ain’t gonna be around much longer.”
1 The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.

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When Andre resurfaced the next spring in St. Louis, it was time for Norman
to cash in on the life insurance policy. But by this point, Norman was living in Los
Angeles. Enter Travell Hill, the hired gun, and Chris Carroll, Norman’s man on the
ground in St. Louis. Weeks before the murder, Hill and Carroll met to discuss Hill’s
fee, and Carroll told him that he was asking for too much money to kill Andre. When
Andre showed up at Sweetie Pie’s, Carroll and a security guard texted Norman about
his return. Norman flew to St. Louis a week later. He met with Hill the next day
and asked if he had talked to Carroll—a question Hill interpreted as confirmation
that Norman wanted him to kill Andre.
Hill bought a gun. That same day, Norman invited Terica Ellis to his hotel.
He told her that he was looking for Andre, and she agreed to find him. Norman gave
her $10,000. Communications then volleyed between Ellis and Andre and among
Ellis, Hill, and Norman. Ellis pinned Andre down after a few hours and, on Hill’s
orders, got him in her car. He left a few moments later, and Ellis saw a text from
Hill: “Move.” Shots rang out as she sped off, and Andre was dead.
II.
Norman first challenges the denial of his motions to compel Carroll and
Yaghnam’s testimony at trial. The Sixth Amendment guarantees an accused’s right
to compulsory process of favorable witnesses. That right meets its limit in another:
the witness’s Fifth Amendment privilege against compelled self-incrimination.
Both Carroll and Yaghnam asserted their privilege and refused to testify, but
Norman argues that they both waived the Fifth Amendment privilege and that in any
case, neither risked further incrimination.
The district court found that Carroll and Yaghnam’s claims of the privilege
were valid. We review these “highly fact-intensive” decisions for abuse of
discretion. United States v. Allmon, 594 F.3d 981, 984–85 (8th Cir. 2010). The
court’s discretion is bolstered by common sense given “this necessarily difficult
subject.” Mason v. United States, 244 U.S. 362, 366 (1917).

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A.
Norman insists that Carroll “clearly waived his Fifth Amendment rights” by
submitting to hours of FBI questioning about the murder. True, “a witness, in a
single proceeding, may not testify voluntarily about a subject and then invoke the
privilege against self-incrimination when questioned about the details.” Mitchell v.
United States, 526 U.S. 314, 321 (1999) (emphasis added). But testimonial waiver
does not stretch from one proceeding to another. Allmon, 594 F.3d at 985; United
States v. Burch, 490 F.2d 1300, 1303 (8th Cir. 1974). And Carroll did not even
testify in another “proceeding.” His unsworn, out-of-court statements to police did
not waive his Fifth Amendment privilege. Burch, 490 F.2d at 1303.
So the privilege was still Carroll’s to claim. But it was for the district court
to decide whether he faced jeopardy. To sustain the privilege under these
circumstances, the court only needed to consider whether the witness had
“reasonable cause to apprehend danger from a direct answer.” Hoffman v. United
States, 341 U.S. 479, 486 (1951). But the risk of prosecution must be real—the Fifth
Amendment’s protections do not extend to “remote and speculative possibilities,”
unsubstantial danger, or “merely trifling or imaginary[] hazards of incrimination.”
In re Grand Jury Proc.: Samuelson, 763 F.2d 321, 323–24 (8th Cir. 1985) (first
quoting Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472, 478 (1972);
and then quoting Marchetti v. United States, 390 U.S. 39, 53 (1968)).
Carroll faced real danger by testifying. If forced to tell his story under oath,
it might differ from the one he gave the FBI. And the truth could “furnish a link in
the chain of evidence needed to prosecute” him. Hoffman, 341 U.S. at 486. Even
an answer consistent with his previous interview could land Carroll in hot water, as
the “mere repetition on oath of the same facts would of itself, as corroborative
evidence, tend to criminate.” Cullen v. Commonwealth, 65 Va. (24 Gratt.) 624, 637
(1873). And his compelled testimony could have “independent incriminating value”
if he were prosecuted and successfully suppressed the statements to the FBI. Burch,
490 F.2d at 1303.

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Still, Norman criticizes the court’s process. He says it failed to “scrutinize”
Carroll’s “good faith basis” for asserting the privilege. We disagree. “[I]t need only
be evident from the implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result.” Hoffman,
341 U.S. at 486–87. And courts must sustain the privilege unless it is “perfectly
clear, from a careful consideration of all the circumstances in the case, that the
witness is mistaken” and his answers “‘cannot possibly have such a tendency’ to
incriminate.” Id. at 488 (quoting Temple v. Commonwealth, 75 Va. 892, 898
(1881)); see also United States v. Campbell, 410 F.3d 456, 463 (8th Cir. 2005). If
an answer “may or may not criminate the witness,” and the witness says “upon his
oath that his answer would criminate himself,” then “the court can demand no other
testimony of the fact.” United States v. Burr, 25 F. Cas. 38, 40 (C.C.D. Va. 1807)
(Marshall, C.J.).
Carroll took the stand outside the presence of the jury and refused to answer
questions about his association with Sweetie Pie’s and the major players in this case:
Norman, Robbie, Hill, and Andre. He confirmed that he would not testify about any
related issues. Based on the questions and the trial testimony up to that point, the
court found that Carroll faced jeopardy and denied the motion to compel. Its
considered decision was proper and far from the “blind[] accept[ance]” of a “blanket
invocation” Norman portrays it to be.
B.
Yaghnam’s challenge is easier to resolve. He never took the stand—instead,
his lawyer told the court that Yaghnam had not been subpoenaed and that regardless,
he intended to assert his privilege if called. Norman argues that the district court
abused its discretion by refusing to compel Yaghnam to appear and assert his Fifth
Amendment privilege in person.

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It is “beyond controversy that one of the duties which the citizen owes to his
government is to support the administration of justice by attending its courts and
giving his testimony whenever he is properly summoned.” Blackmer v. United
States, 284 U.S. 421, 438 (1932) (emphasis added). That duty is in turn “measured
by the subpoena, the only process under which [one] could be required to appear and
testify at all.” Loubriel v. United States, 9 F.2d 807, 809 (2d Cir. 1926). Norman
does not dispute that he failed to serve a subpoena. See Fed. R. Crim. P. 17. Without
a properly served subpoena, Yaghnam had no duty to appear in court, and Norman’s
Sixth Amendment argument fails. See Taylor v. Illinois, 484 U.S. 400, 415 (1988)
(requiring “affirmative conduct” like “the serving of subpoenas” to invoke the right
to compulsory process).
III.
Norman next faults the district court for admitting hearsay texts from Andre
and an out-of-court statement from Carroll. We review for a “clear and prejudicial
abuse of discretion.” United States v. Hyles, 479 F.3d 958, 970 (8th Cir. 2007)
(citation omitted).
A.
After the break-in, Andre texted Robbie to explain that he could not take a
polygraph to clear his name because he’d left town: “I been out of town cuz yu don’t
believe me n I’m not bout to get hurt from nobody for sum shit I didn’t do . . . I’m
telling yu know TIM IS AFTER ME,” and later, “I’m not just bout to be sitting in
STL wen I know Tim got people looking for me.” The district court admitted the
messages into evidence, reasoning that they showed that Andre’s then-existing state
of mind was fear of Norman. See Fed. R. Evid. 803(3).2
2 Norman complains that the Government exceeded the narrow Rule 803(3)
purpose by arguing at closing that Andre feared Norman had people after him “and
he was right.” He did not object to the statement and does not now argue that it was

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Norman counters that the messages were irrelevant and prejudicial. We
disagree. The messages helped explain why Norman could not act sooner and had
to enlist others in his plot—Andre was steering clear of St. Louis and needed to be
flushed out. They also rebutted Norman’s defense that Andre knew about the
insurance applications he submitted after the break-in—the two were not likely to
have discussed the policies while Andre was afraid of Norman and avoiding him.
And in any case, Norman has not shown that a danger of unfair prejudice
substantially outweighed this probative value. See Fed. R. Evid. 403; United States
v. Medearis, 65 F.4th 981, 986 (8th Cir. 2023) (“Unfair prejudice means an undue
tendency to decide a case on an improper basis.” (cleaned up) (citation omitted)).
Norman also argues that the messages lacked proper foundation. He points to
Federal Rule of Evidence 602’s requirement that a witness have “personal
knowledge of the matter” to which he testifies. But the “matter” under Rule 803(3)
is not whether Norman was in fact after Andre such that his fears were justified; it
is Andre’s “then-existing state of mind.” Surely Andre had personal knowledge of
his own mind. Norman does not suggest that the messages lacked authenticity or
the “circumstantial guarantee of trustworthiness” governing admissibility under this
hearsay exception: “substantial contemporaneity of event and statement.” See
United States v. Dierks, 978 F.3d 585, 593 (8th Cir. 2020) (cleaned up) (citation
omitted).
B.
We reach the same result with Carroll’s statement, elicited during Hill’s
testimony, that Hill “was charging Tim too much . . . to murder Andre.” The court
found that Carroll was a member of the murder-for-hire conspiracy and that he made
the statement in furtherance of the conspiracy, so it admitted the statement as non-
“plainly unwarranted and clearly injurious.” United States v. Oslund, 453 F.3d 1048,
1059 (8th Cir. 2006). So there is no reversible error.

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hearsay under Rule 801(d)(2)(E).3 See United States v. Bell, 573 F.2d 1040, 1043
(8th Cir. 1978) (discussing admissibility). Norman argues that it was inadmissible
because the only proof of Carroll’s membership was the disputed statement itself,
which could not alone establish his participation in the conspiracy.
Norman gets the rule right but the record wrong. There was ample evidence
of Carroll’s involvement in the conspiracy. Hill testified that he met with Carroll
and said that Norman could give him anything he wanted to for the task. On the day
of the murder, Carroll picked Norman up from the airport, and Norman sent him
photos from Andre’s Instagram. Norman saw Hill and asked if he had talked to
Carroll, which gave Hill the impression that Norman wanted him “to go kill Andre.”
He then bought the gun he used hours later to do just that.
IV.
Norman also argues that the district court should not have allowed FBI agents
to use two demonstrative exhibits, or pedagogic devices, that summarized evidence
while they testified at trial. There are two paths for presenting summary material:
as evidence to prove its content, see Fed. R. Evid. 1006, or as an illustrative aid to
organize evidence for the jury, see United States v. King, 616 F.2d 1034, 1041 (8th
Cir. 1980); United States v. Fechner, 952 F.3d 954, 959–60 (8th Cir. 2020). The
Government took the second route. Our review of the court’s decision to receive the
illustrative aids is limited to whether they were “so unfair and misleading as to
require a reversal.” Fechner, 952 F.3d at 960 (citation omitted).
3 Norman claims that the statement was “particularly prejudicial” and should
have been struck because the court refused to compel Carroll’s testimony. But the
ruling is on no shakier ground by virtue of Carroll’s absence. See United States v.
Reyes, 362 F.3d 536, 542 (8th Cir. 2004) (“[W]hen a statement is admissible as a
co-conspirator statement, the Constitution gives the defendant, at most, the right to
confront the witness who recounts the statement.” (emphasis added)).

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One contested set of slides summarized inconsistencies in the insurance policy
applications and put them in context with Norman and Yaghnam’s texts. Another
synthesized phone and bank records to help jurors understand the timeline of the
murder. Neither was offered as evidence, the court instructed the jury to that effect,
and the slides were not provided to the jury during deliberations. See United States
v. Possick, 849 F.2d 332, 339 (8th Cir. 1988). The exhibits “merely provided a
visual aid during [the agents’] testimony,” Fechner, 952 F.3d at 960, and they were
“straightforward and accurate,” Possick, 849 F.2d at 339; cf. United States v.
Hawkins, 796 F.3d 843, 866 & n.18 (8th Cir. 2015). Because there was nothing
unfair or misleading about the illustrative slides, the district court did not abuse its
discretion.
V.
Only Norman’s challenges to the final and supplemental jury instructions
remain. But he has waived the former by jointly proposing the instructions and
failing to object. United States v. Tillman, 765 F.3d 831, 836 (8th Cir. 2014). And
we see no abuse of the court’s “substantial discretion” in the latter. United States v.
Stevenson, 979 F.3d 618, 625 (8th Cir. 2020).
During deliberations, the jury requested clarification on Instruction No. 22,
which told the jury that Hill and Ellis were cooperating witnesses who “participated
in the crime charged” and hoped to receive sentence reductions. It further charged
the jury with deciding the weight of their testimony in light of their cooperation. The
jury asked about a third witness, who was not named in the instruction. Norman
wanted a supplemental instruction that identified the witness as a cooperator, but the
Government resisted, arguing that he was unlike Hill and Ellis—he was not charged,
and whatever the nature of his cooperation agreement, it did not promise leniency at
sentencing.
As is “often a proper response,” the court referred the jury back to the final
instructions. Stevenson, 979 F.3d at 625. There was no evidence indicating that the

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Government agreed to seek a reduced sentence in exchange for the witness’s
cooperation, so Norman’s preferred instruction would have been inaccurate. Cf.
United States v. Tremusini, 688 F.3d 547, 557 (8th Cir. 2012) (finding that the
district court “properly declined” to give a similar instruction absent an agreement
for leniency). Plus, another instruction covered the substance of Norman’s
complaint by advising the jury to consider “any motives [a] witness may have for
testifying a certain way.” The court’s supplemental jury instruction offers Norman
no reprieve. See United States v. Maupin, 3 F.4th 1009, 1014–15 (8th Cir. 2021).
VI.
We affirm the district court’s judgment.
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