United States v. Maldonado-Passage.
No. 20-6010. W.D.Okla. Judge Phillips. Murder-for-Hire Plot—Fed. R. Evid. 615—Crime Victims’ Rights Act—Grouping of Convictions for Sentencing—US Sentencing Guidelines.
July 12, 2021
Defendant owned an exotic animal park that was known for crossbred hybrid lions and tigers. He held traveling road shows at which he charged mall patrons to take photos with young animals, usually tiger cubs. Baskin is an animal rights activist who owns Big Cat Rescue. She and her supporters criticized defendant and protested his road shows. After defendant learned of Baskin’s activities, he changed the name of his road show to Big Cat Rescue Entertainment. Baskin successfully sued defendant for copyright and trademark infringement and won a $1 million judgment.
Defendant did not pay the judgment and began issuing violent online threats against Baskin. Soon thereafter, defendant paid an employee from his park $3,000 to murder Baskin. The employee did not follow through with the murder. Defendant then hired a second hitman, who was an undercover FBI agent. Defendant was arrested and indicted with 19 counts related to wildlife crimes and two counts of using interstate facilities in the commission of his murder-for-hire plots. The government listed Baskin as a trial witness. Defendant moved to sequester her under Fed. R. Evid. 615, but the court allowed her to remain in the courtroom. A jury convicted him on all counts, and the court sentenced him to 264 months’ imprisonment.
Defendant argued on appeal that the trial court erred in permitting Baskin to attend the entire trial proceedings. He maintained that she was not entitled to remain in the courtroom under the Crime Victims’ Rights Act (CVRA) because she had not suffered physical harm from his crimes. However, Rule 615 does not exclude a person authorized by statute to be present, the CVRA generally grants crime victims the right not to be excluded, and physical harm is not a prerequisite to make someone a victim under the CVRA. Here, defendant’s commission of the murder-for-hire crimes directly and proximately caused Baskin’s harms, so the district court acted within its discretion in allowing Baskin to remain in the courtroom as a crime victim under the CVRA.
Defendant also contended that US Sentencing Guidelines (USSG) § 3D1.2(b) required the district court to group the two murder-for-hire convictions in calculating the advisory range. Under the USSG, courts must group counts involving “substantially the same harm” if (1) the counts involve the same victim, (2) the counts involve two or more acts or transactions, and (3) the acts or transactions are connected by a “common criminal objective.” Here, there was no dispute that the first two conditions were met. As to the third, although defendant hired two different hitmen on two different occasions, the goal was the same criminal objective. Accordingly, the district court erred in not grouping the two murder-for-hire counts.
The conviction was affirmed, but the sentence was vacated and the case was remanded for resentencing.