Jul 09, · In the second scheme, according to prosecutors, Nordlicht and Levy defrauded bondholders in Black Elk, an oil exploration company Platinum owned, by diverting money from asset sales to Platinum. See Revisor's Note, 18 U.S.C.A. Sec. (). Moreover, the majority's reasoning attempts to overrule the recognition by this court and others that life imprisonment is the maximum penalty for second degree murder. United States v. Black Elk, F.2d 49, 51 (8th Cir. ) (per curiam) (emphasis added). Cf. United States v. Black Elk Energy Offshore Operations, LLC sells its natural gas and oil to marketing companies and refineries. The company was founded in and is headquartered in Houston, Texas. On August 11, , an involuntary petition for liquidation under Chapter 7 was filed against Black Elk Energy Offshore Operations, LLC in the U.S. Bankruptcy Court for the District of Texas.
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He arrived there around midnight and obtained help. Park rangers started searching that night for the two women. When they came to the camp in the early hours of the morning they found only one swimsuit on the line; April's swimsuit was found in the grub box on top of her husband's swimsuit.
The camp site was not in disarray, and there was no appearance of a struggle having taken place. No footprints were found outside a fifty yard radius on the gravel bar. No footprints were found on a gravel bar where Rothgeb told the officers he had walked when looking for his wife and child. No ranger who entered the tent smelled cat urine there.
Five men, camping approximately one-fourth of a mile below the Rothgeb campsite, said they neither saw Rothgeb nor heard him calling for his wife and child that evening. There was evidence that it usually takes one-half hour in daylight to walk from the Rothgeb campsite to Bunker Hill; it took Rothgeb three hours that night. It was not until the following morning that the bodies of April and Windy, fully clothed, were found. April's body was found three-fourths of a mile downstream from the Rothgeb camp, caught on a root-wad.
About two hundred fifty--three hundred yards downstream from the Rothgeb camp the body of Windy was found in an eddy, out of the mainflow of the river. Windy's glasses were found in water twenty-four inches deep, approximately twenty-five yards downstream from the family camp. Both women died by drowning, but it could not be determined whether they were conscious at the time they drowned. Neither woman had been sexually assaulted.
Rothgeb testified that he and April had discussed getting a divorce; however, with the exception of one of his friends, no one else, including April's parents and friends, was aware that there were any marital problems or plans for a divorce.
Rothgeb had a lover, Kitty Eldridge, who lived in North Carolina. He had met her in November, , approximately seven months before the murders occurred. He had communicated with her frequently and had visited her on two occasions.
The second visit was during the last week of May, two and one-half weeks before the murders. The day before the float trip Rothgeb talked with Kitty four different times on the telephone. The evidence showed that Kitty had the impression from Rothgeb that the float trip was to be the last family trip before the divorce, and she had told a friend that Windy and Rothgeb were coming to live with her in North Carolina.
Rothgeb's letters to Kitty also suggested that he and Windy were going to move to North Carolina and live with Kitty. It was not likely that Rothgeb could have easily gotten custody of his daughter. Windy was April's only child, and April had had a tubal ligation and could not have any more children.
No mention was made to the insurance salesman of any plans for divorce. David Rothgeb was the primary beneficiary of this policy. Within days of his wife's death he had contacted the insurance company. As indicated, we have set out only some of the facts involved in this case. We have not set out all of the inconsistencies in Rothgeb's story, the conflicting statements he made to various people, the experts' opinions as to how the women incurred the injuries found on their bodies, and the other circumstantial evidence which supports a finding of guilt.
Rothgeb argues that there were two equally reasonable inferences, one of guilt and one of innocence, and therefore the jury must have had a reasonable doubt. We disagree that there were two equally reasonable inferences. The jury's verdict was supported by substantial evidence, and we do not believe that the jury must have had a reasonable doubt of Rothgeb's guilt.
The government did not have to prove Rothgeb's guilt beyond any possible doubt, only beyond reasonable doubt. The trial court did not err in denying the motions for acquittal. Rothgeb next argues that the trial court erred in admitting the testimony of Trooper Horst. The trial court has broad discretion in determining what evidence can be admitted, and its decision will be overturned on appeal only if there was an abuse of discretion.
Swarek, F. Trooper Horst was present when Rothgeb took a polygraph examination and was asked three times, in slightly different context, whether he had killed his wife and child.
At trial, no mention was made of this polygraph examination. Horst testified only that he was present during an interrogation when Rothgeb was asked the questions, and that he observed that for each question Rothgeb would hold his breath for five to fifteen seconds, reply no, and then pant like a dog. He also stated that Rothgeb sweated profusely during the questioning. Rothgeb argues that the probative value of the testimony was outweighed by the unfair prejudicial effect. See Fed.
He argues that the government offered the evidence to prove consciousness of guilt, but that the evidence did not support an inference of guilt and therefore it should not have been admitted. He compares the evidence of his demeanor to evidence of flight from the scene of the crime.
See United States v. Myers, F. It should be admitted only if an inference of consciousness of guilt can be fairly made from evidence. One's demeanor during questioning is not necessarily comparable to the prejudicial effect created by evidence of flight. Heavy breathing and sweating during an interrogation are not admissions, and we do not believe the conduct necessarily creates an inference of consciousness of guilt. The jury may or may not have believed that Rothgeb's reactions indicated that he was lying.
There was no per se unfair prejudicial effect. Rothgeb also argues that the evidence should not have been admitted since his demeanor during questioning is less probative than an outright refusal to take a polygraph test, yet a refusal is not admissible evidence. Although the results of a polygraph examination and a refusal to take a polygraph may not be admissible, the responses to questions asked during the polygraph are admissible evidence.
See Wyrick v. Fields, U. We believe that evidence concerning a defendant's demeanor during the questioning is also admissible, particularly when there is no mention that the questioning occurred during a polygraph examination. Finally, Rothgeb argues, for the first time, that the evidence should not have been admitted because the testimony was false and he had no way to impeach Horst's credibility without bringing in evidence about the polygraph. The evidence that Rothgeb cites does not fully support this allegation, and it does not support a demand for a new trial.
We are not persuaded that the district court abused its discretion in admitting Horst's testimony. Moreover, if there was error in admitting the evidence, it was harmless beyond a reasonable doubt.
Rothgeb's demeanor during this questioning appears to have been an insignificant part of the government's case, which, though largely circumstantial, was very strong indeed. The last issue raised by Rothgeb concerns the legality of his sentence. For the first degree murder Rothgeb was sentenced to life imprisonment, and he will be eligible for parole consideration after ten years.
See 18 U. For the second degree murder he was sentenced to two hundred ten years imprisonment under 18 U. The trial court held that Rothgeb will not be eligible for parole consideration until he has served sixty-nine years of the sentence. The two sentences are to run consecutively. Section b allows the court to impose "any term of years or life imprisonment" for second degree murder. The language of the statute is unambiguous.
To hold otherwise makes the use of the words "any" and "or" superfluous. If Congress had intended that there be a limit on the number of years it could have so stated. See Giblin v. United States, F. O'Driscoll, F. The sentence of two hundred ten years was within the statutory limits. Section a provides that "a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law.
However Sec. Section b provides that when "the ends of justice and the best interest of the public require that the defendant be sentenced to imprisonment for a term exceeding one year," the court "may 1 designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court Rothgeb argues that Sec.
Although the statute clearly and unambiguously provides that the court may require that the defendant serve up to one-third of the maximum sentence imposed, he argues that this was not the intent of Congress. He believes that the legislative history indicates that the purpose of subsection b was to permit only earlier parole releases. See S. Code Cong. News The starting point for construing a statute is the language of the statute itself. Consumer Product Safety Commission v.
GTE Sylvania, Inc. Unless there is a clearly expressed legislative intention to the contrary, the language of the statute must ordinarily be regarded as conclusive. Here, the issue of whether the court could postpone the parole eligibility date was not directly addressed in the legislative history, and there are only vague references as to the intent of Congress.
Arguments as to the general intent of the Congress cannot overturn the specific language of the statute. The trial court is permitted to require that a defendant serve longer than ten years before he is eligible for parole when it is in the interest of justice.
See O'Driscoll, F. Young-Buffalo, F. Fountain, F. There is, of course, the possibility that Rothgeb will never be granted parole on his life sentence. Even so, it is at least arguable that in a sense the sentencing result here may be anomalous in that Rothgeb must serve a longer time before parole eligibility for the lesser crime than for the greater crime. However, the sentence of sixty-nine years before parole eligibility is authorized by statute, and we are not inclined to upset it.
In coming to this conclusion, we recognize that the sentence is an extremely long one and we wish to emphasize that our decision here is without prejudice to the right of Rothgeb to seek reduction of sentence in the district court under the provisions of Fed. From what has been said, it follows that the judgments of the district court convicting and sentencing appellant should be, and they are, affirmed.
I write separately to dissent from the majority's approval of the district court's erroneous ruling that 1 a sentence of years imprisonment for a second degree murder conviction lies within the applicable statutory limits of 18 U.
Both decisions are in direct conflict with decisions of this court. There are two fundamental errors in the majority's analysis. First, in interpreting Sec. The analomy created by the majority's reasoning is that it approves a greater sentence for second degree murder than for the more heinous crime of first degree murder.
Bankruptcy Court for the Southern District of Texas. The case converted to a voluntary chapter 11 case shortly thereafter. According to the court documents, beginning on Nov.
Starting on or about Nov. On or about Nov. Moss and Dantin did not a sk S ru b ar if he completed a safety check of the area. In addition, they did not complete a pre-work inspection or issue a warning to the G IS cr e w s to step welding on t he su m p li ne p i p i n g. Workers started to m a k e c uts to the sump line pi p ing l ea di n g to the W e t O il T a nk, causing liquid to spill from the piping. Other workers were seriously burned and physically injured.
BEE admitted that its employees and agents were negligent in the manner in which they planned and executed the hot work on West Delta 32 platform, and that the acts of their agents and employees violated the regulations in 30 C.
Fifth Circuit Court of Appeals, argued on May 1, The U. Assistant U.