UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5701

JIMMY RAY GARTMAN, SR.,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(CR-95-253)

Argued: March 7, 1997

Decided: April 23, 1997

Before HAMILTON, Circuit Judge, KISER, Chief United States

District Judge for the Western District of Virginia, sitting by

designation, and GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Goodwin wrote the opinion,

in which Judge Hamilton and Chief Judge Kiser joined.

_________________________________________________________________

COUNSEL

ARGUED: Suzanne Elizabeth Coe, ARNOLD & COE, L.L.P.,

Greenville, South Carolina, for Appellant. John Michael Barton,

Assistant United States Attorney, Columbia, South Carolina, for

Appellee. ON BRIEF: Margaret B. Seymour, United States Attorney,

Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

GOODWIN, District Judge:

The defendant-appellant Gartman was convicted on all three counts

of an indictment charging him with conspiring to murder federal

employees, attempting to retaliate against a federal witness or

informant, and conspiring to murder a federally protected witness.* He

appeals from the trial court's denial of a motion for judgment of

acquittal on all counts. He asserts that the evidence was

insufficient

to sustain his conviction. We affirm.

_________________________________________________________________

*Gartman was convicted in count I of violating 18 U.S.C. § 1117 by

conspiring to murder Agent Ronald Grosse and Assistant United

States

Attorney Dean Eichelberger. Section 1117 provides in pertinent part

that

"[i]f two or more persons conspire to violate section . . . 1114 .

. . of this

title, and one or more of such persons do any overt act to effect

the object

of the conspiracy, each shall be" guilty of a crime. Section 1114

makes

it unlawful to "kill or attempt to kill . . . any Assistant United

States

Attorney, . . . [or] any officer or employee of the Federal Bureau

of

Investigation . . . ." Gartman was convicted in count II of aiding

and

abetting an attempt to kill Robert Arnold in violation of 18 U.S.C.

§ 1513. Section 1513 makes it unlawful to"kill[] or attempt to kill

another person with intent to retaliate against any person for --

(A) the

attendance of a witness or party at an official proceeding, or any

testimony given . . . or (B) providing to a law enforcement officer any

information relating to the commission or possible commission of a

Federal

offense." Gartman was convicted in count III of violating 18 U.S.C.

§ 371 by conspiring to murder Sharon Gregory in violation of 18

U.S.C.

§ 1513. Section 371 provides in pertinent part that "[i]f 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" guilty of a crime.

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I.

The defendant Jimmy Ray Gartman was unemployed and lived in

a small house with his working wife. Chris Elkins (his nephew) and

Elkins's friend Edwin Atwood visited Gartman regularly. During the

late fall of 1994, Gartman spent "two or three" hours several times

a

week regaling these young men with vituperations directed at those

persons whom he had cast as his enemies and persecutors -- former

insurance investigator Robert Arnold; FBI agent Ronald Grosse;

Assistant United States Attorney Dean Eichelberger; and federal

witness Sharon Gregory.

Elkins and Atwood's trial testimony made Gartman's animus

towards these four individuals explicable. As to Robert Arnold,

they

testified that Gartman long suspected Arnold of and blamed him for

the killing of his youngest son, despite the acquittal on

self-defense

grounds of the son's ex-wife. Moreover, Arnold had investigated

over

50 allegedly fraudulent insurance claims filed by Gartman and his

family and had turned over his information to the FBI before

leaving

the investigation business.

Gartman's animus towards Grosse, Eichelberger, and Gregory

resulted from several interrelated events surrounding the ensuing

FBI

and grand jury investigation into the alleged insurance fraud.

Agent

Grosse was the lead FBI investigator; AUSA Eichelberger was the

attorney in charge; and Sharon Gregory was a federal witness

against

Gartman and his son Ray Gartman, Jr. Elkins and Atwood testified

that Gartman felt persecuted by this investigation. Gartman, Jr.

accused Gregory (his ex-girlfriend) of cooperating with the

authorities

in the grand jury investigation, assaulted her, was convicted of

retaliating against a federally protected witness in violation of 18

U.S.C.

§ 1512(b), and was sentenced to 68 months imprisonment. Agent

Grosse investigated the assault and AUSA Eichelberger prosecuted

the case. Elkins and Atwood testified that Gartman blamed Gregory,

Grosse, and Eichelberger for "setting up" his son on the assault

conviction.

Gartman engaged in no more than verbal vilification of Arnold,

Grosse, Eichelberger, and Gregory, however, until a December 1994

meeting between Gartman, Elkins, and Atwood. Atwood testified that
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during this visit Gartman stated that somebody needed to "take care

of" Arnold. (J.A. 80). Gartman then went into his bedroom,

retrieved

some cash, and offered Elkins and Atwood $5,000 to kill Arnold

(about $2,000 down, about $3,000 later). (J.A. 80-81, 198-200).

Gartman then went back into his bedroom and returned without the

money. When he returned, he said that "he wouldn't mind taking care

of" or "also wanted . . . to get rid of Ronald Grosse, Dean

Eichelberger, and Sharon Gregory." (J.A. 82, 200). Elkins asked how much

Gartman would pay. Atwood does not remember any specific

amounts, but Elkins testified that Gartman would pay $30,000 each

for Grosse and Eichelberger and $20,000 for Gregory. (J.A. 82,

201).

The next day, Elkins and Atwood told Gartman that they agreed to

kill all four individuals, starting with Arnold:

Q: You and Mr. Elkins agreed to kill four people; is that

correct?

A: Yes, sir.

...

A: We went back and I believe Chris stated to him that we

would do it.

Q: What was your understanding, what was the defendant's reaction when you told him we will do it?

A: He seemed pretty happy.

Q: What was your understanding, Mr. Atwood, as to what

you and Chris had agreed with the defendant you were

going to do?

A: To initially kill Robert Arnold and if successfully completed Dean Eichelberger, Ron Gross, and Sharon

Gregory.

Q: You were going to murder Robert Arnold and if you

pulled that off murder the rest; is that correct?

4
A: Yes, sir.

(J.A. 84, 85-86; testimony of Atwood).

Q: Did you and Mr. Atwood discuss what the defendant

had suggested to you?

A: Yes, sir.

Q: Did you and Mr. Atwood agree to do what the defendant had asked you to do?

A: Yes, sir.

Q: What was your understanding of what you and Mr.

Atwood had agreed to do for the defendant?

A: To kill these people.

Q: Who are these people again?

A: Sharon Gregory, Ronald Grosse, Dean Eichelberger,

and Robert Arnold.

Q: Who were you going to start with?

A: Robert Arnold.

Q: Why were you going to start with Robert Arnold?

A: Because he wanted him first.

Q: It was the defendant's idea?

A: Yes, sir.

Q: How much money were you going to get paid?

A: For Ronald Arnold $5,000.

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Q: For Dean Eichelberger?

A: $30,000.

Q: Ronald Grosse?

A: $30,000.

Q: Why were you getting paid so much more for that?

A: Because of the importance of them people was so much

more.

Q: How about Sharon Gregory?

A: $20,000.

Q: Why were you getting paid so much more for her?

A: Because she was a federal witness.

Q: When did you and Mr. Atwood tell the defendant that

you would in fact go forward with this plan?

A: The next day, I believe.

Q: What did you tell him?

A: We told him we would do it. We didn't know who

Robert Arnold was.

(J.A. 202-03; testimony of Elkins).

Elkins and Atwood testified that Gartman provided them with

information to aid them in killing the four targets. Gartman told

them

the location of Arnold's place of business and suggested the manner

in which Arnold should be killed. He told them that Grosse drove a

blue Thunderbird with tinted windows and lived in Lexington County.

They learned from Gartman that Eichelberger shops at Wal-Mart on

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the weekends and he suggested that they should kill him there with

a rifle. Gartman told them that Gregory worked at Bob Johnson's

Auto Body, that she lived behind that business, and that they

should

kill her by placing a bomb under her house. (J.A. 201, 207-09).

At Gartman's direction, Elkins and Atwood made botched attempts

to carry out their end of the agreement. They obtained a semiautomatic pistol to first kill Arnold. Elkins, who was carrying the

pistol, and Atwood met Arnold to arrange a test-drive with him in a

car

he was selling. Although Elkins and Atwood took a test drive,

Arnold

did not ride with them, foiling that killing scenario. They

reported

their blundered efforts to Gartman and plotted their next move.

Again

at Gartman's direction, Elkins and Atwood planned to call Arnold at

a wrecker service he owned in an attempt to lure him out and kill

him.

After drinking several beers, Atwood put on a country accent and

called Arnold. However, Arnold asked skeptical questions and advised

that he would not pick them up until after daylight, leading Elkins

and

Atwood to abort plan two. Elkins testified that despite their

bungling,

Gartman gave him $2000, which he split with Atwood. Both young

men soon became nervous and Atwood reported the plot to the FBI.

Shortly thereafter, Elkins and Atwood began cooperating with the

authorities.

II.

Gartman first argues that this case involved four separate

conspiracies with four individual targets -- Arnold, Grosse, Eichelberger,

and

Gregory -- and that the only overt acts proved were in furtherance

of a single conspiracy to kill Arnold. The issue, therefore, is

whether

there were four separate conspiracies or one conspiracy to kill

four

individuals.

To answer the single/multiple conspiracy question, the government

and the defendant each cite United States v. Leavis, 853 F.2d 215

(4th

Cir. 1988). The Leavis court provided that"[t]he question whether

the

evidence shows a single conspiracy or multiple conspiracies...

is
one of fact and is properly the province of the jury." Id. at 218.

"A

single conspiracy exists where there is `one overall agreement,' or

`one general business venture'." Id. (citations omitted). "Whether

there is a single conspiracy or multiple conspiracies depends upon

the

7
overlap of key actors, methods, and goals." Id. (citing United

States

v. Crockett, 813 F.2d 1310, 1216-17 (4th Cir. 1987); United States

v.

Little, 753 F.2d 1420, 1448 (9th Cir. 1984)).

Although the indictment alleges in the preamble that there was one

overall goal to Gartman's actions (Indictment ¶ 5, J.A. 2), it

charged

three counts -- conspiracy to kill Grosse and Eichelberger; aiding

and

abetting an attempt to kill Arnold; and conspiracy to kill Gregory.

As

the government explained to the trial court, three counts were

charged

because the conspiracy could not statutorily be charged in one

count

-- only Grosse and Eichelberger were federal employees, Gregory

was a federal witness but not an employee of the United States, and

attempt more closely fit the charged conduct relating to Arnold

than

did conspiracy. This fact does not prevent the jury from finding

that

one overall conspiracy existed: "Simply put, the fact that an

indictment charges conspiracy in separate counts does not mean that the

conspiracies charged necessarily must be separate and distinct."

See

United States v. Fisher, 3 F.3d 456, 460 (1st Cir. 1993). In

Fisher, the

defendant argued that the government could not make a "one big conspiracy" argument because the indictment charged separate conspiracies. Id. The First Circuit rejected that argument and noted that

"there

is a complete lack of authority supporting the novel proposition

Fisher

asserts." Id. Although the First Circuit noted that a defendant

could

always argue prejudicial variance, the government would not be prevented from arguing one big conspiracy because the purpose of the

indictment is primarily to provide notice of the charges to the

defendant, not as a means of assessing proof. Id. at 460 & 460 n.10.

Here,

we also note that the indictment did assert "one big conspiracy" in

the

preamble; that Gartman did not offer an instruction at trial on

single/

multiple conspiracies; and that Gartman has not raised variance as

an

issue.

We must sustain a jury verdict "if there is substantial evidence,
taking the view most favorable to the government, to support it."

Glasser

v. United States, 315 U.S. 60, 80 (1942). We must consider circumstantial as well as direct evidence and allow the government the

benefit of all reasonable inferences from facts proven to facts sought

to be

established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir.

1982). Construing the evidence -- including testimony from the

alleged coconspirators Elkins and Atwood -- in the light most

favor8
able to the government, we find there is substantial evidence to

support the jury's verdict.

Here, the trial evidence was that there was a single conspiracy to

kill all four individuals. First, both Elkins and Atwood testified

repeatedly that their agreement with Gartman was to kill all four

individuals, starting with Arnold. (J.A. 82-83, 84-86, 146, 198,

200-01,

202-03). Additionally, Gartman's offer to have all four individuals

killed was made at the same time -- during one conversation with

Elkins and Atwood -- and followed complaints about all four

individuals for their activities related to the insurance investigation.

The

Leavis factors also point to one conspiracy. The key actors --

Gartman, Elkins, and Atwood -- not only overlapped but were identical.

Although the methods varied somewhat, the goal to be achieved was

the same -- killing Gartman's enemies. Clearly, a jury could rationally find that there was only "one overall agreement," and thus

one

conspiracy, to kill all four individuals.

The proof also established overt acts in furtherance of the

conspiracy to kill Gartman's four enemies. Among the overt acts proved

were the following: Gartman had conversations with Elkins and

Atwood about the method, timing, and location of the murders;

Elkins

and Atwood obtained a gun to kill Arnold; they tried to lure Arnold

out to kill him during a test-drive; they tried to lure Arnold out

to kill

him with a late night call to Arnold's wrecker service; and Gartman

gave $2000 to Elkins and Atwood for their initial efforts. When a

single conspiracy has multiple goals (i.e., killing four people), any

overt

act directed towards one of the goals (i.e., killing Arnold) is

sufficient

to sustain the overall conspiracy conviction. See United States v.

Head, 641 F.2d 174, 181 (4th Cir. 1981), cert. denied, 462 U.S.

1132

(1983). Therefore, Gartman's conviction on counts I and III are

affirmed.

III.

Gartman next argues that the evidence was insufficient to sustain

his conviction on count II of the indictment for aiding and

abetting

an attempted retaliation against a federal witness or informant in
violation of 18 U.S.C. § 1513. His conviction must be sustained if a

rational jury could find beyond a reasonable doubt that Gartman

9
intended to have Arnold killed in retaliation for Arnold providing

information to the government relating to Gartman's alleged insurance fraud activities.

The evidence that Gartman intended to have Arnold killed because

of his insurance fraud investigation and for turning his files over

to

the FBI included the following: There was testimony from both

Elkins and Atwood that Gartman "hated" Arnold both for his son's

death and for the insurance investigation. (J.A. 69-70; 194).

Elkins

also testified that Gartman was aware that Arnold had been the

original investigator into the alleged insurance fraud and that Arnold

had

turned his files over to the FBI: "Q: What did[Gartman] tell you

about insurance fraud investigations? A: He told me he was being

investigated because Robert Arnold had initially been the

investigator

of it. He had turned his files over to the FBI." (J.A. 191). Atwood

testified that during the original conversation with Gartman about

killing

Arnold "[w]e were talking specifically about Robert Arnold at the

time, about the fact that he possibly had something to do with his

son's death. The investigation he did on insurance fraud. That

somebody needed to take care of him." (J.A. 80). Finally, Gartman's

request to murder Arnold came during the same conversation in

which Gartman also sought to have the FBI agent and the AUSA

investigating the insurance fraud and the grand jury witness who

implicated him for insurance fraud murdered. Therefore, Gartman's

conviction on count II is affirmed.

IV.

For the reasons stated, we affirm Gartman's conviction.

AFFIRMED

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