stating that although "[t]raditionally, conspiracy law has required more than `mere presence' or mere knowledge to sustain a conviction for conspiracy[.] . . . [t]here is a distinction between `mere presence' and `presence under a particular set of circumstances' that indicate participation," and that "presence coupled with other signs of involvement will be enough to sustain a conviction"
How later courts described this case
- stating that although "[t]raditionally, conspiracy law has required more than `mere presence' or mere knowledge to sustain a conviction for conspiracy[.] . . . [t]here is a distinction between `mere presence' and `presence under a particular set of circumstances' that indicate participation," and that "presence coupled with other signs of involvement will be enough to sustain a conviction"
- determining that extensive precautions taken to ensure security in an apartment during a mob meeting and the content of the information discussed during that meeting were cireumstances under which the jury could infer a mob underboss's involvement in the crimes discussed even though he did not participate in the conversations
- stating that “[wjhen an attorney is an unsworn witness ... the detriment is to the government, since the defendant gains an unfair advantage, and to the court, since the factfinding process is impaired. Waiver by the defendant is ineffective in curing the impropriety in such situations, since he is not the party prejudiced.”
- holding that effectiveness of replacement counsel does not justify an otherwise unwarranted disqualification; nevertheless, fact that defendant received more than competent representation was an additional consideration strongly supporting district court’s disqualification order
Written by the judges who cited it.
The opinion
KEARSE, Circuit Judge,
concurring:
I concur in the judgment and in most of the majority opinion. I disagree, however, with the majority’s treatment of the trial court’s instructions on the counts charging violations of 18 U.S.C. § 1959 (1988).
With respect to the. counts charging substantive violations of § 1959, the trial court began by instructing the jury properly that it could not find a defendant guilty unless it found that he had committed the alleged murder “for the purpose of ... maintaining or increasing position” in the racketeering enterprise. .As the majority recognizes, however, toward the end of this part of the instructions, the trial court began using a shorthand phrase, i.e., murder “in aid of racketeering,” which omitted reference to the position-related-purpose element of the offense. This omission- also characterized the trial court’s instructions on the counts charging conspiracy violations of § 1959.
In addition, the instructions on the § 1959 conspiracy charges, quoted in the, majority opinion, contained a second flaw not discussed by the majority. In advising the jury that it was “enough” if the government proved that defendants agreed “to commit a crime to violate the law,” for example, the court not only obscured § 1959’s position-related-purpose requirement but also opened the door to verdicts of guilty oh the basis that the defendants conspired merely to violate § 1959 or some other federal law, without having conspired to commit murder in order to maintain or increase their respective positions in the racketeering enterprise. To be sure, a conspiracy to violate § 1959 or any other federal statute would in itself be a crime, for it would violate 18 U.S.C. § 371 (1988), which prohibits conspiracy to commit an 'offense against the United States. A person may be guilty of conspiring to violate a given substantive section, however, without having performed all of the acts needed, or without possessing the motive needed, to consummate a violation of that section. For example,-a conspiracy to violate § 1959 could encompass a conspiracy in which defendant X agreed to murder Y with the goal of assisting Z to improve Z’s position in the racketeering enterprise. Though that conspiracy, assuming commission of an overt act in furtherance, would violate § 371, it would not be a conspiracy in violation of §. 1959 as alleged in the present case, unless X was a member of the enterprise and also had the purpose of improving or increasing his own position in the enterprise. The indictment in this case did not charge a violation of § 371, and the quoted parts of the court’s instructions were an inaccurate statement of what the jury needed to find in order to convict defendants of the alleged conspiracy in violation of § 1959. Advising the jury that one of the two essential elements of the § 1959 conspiracy offense was “conspiracy to murder in aid of racketeering” (the other element being that the defendant knowingly joined the conspiracy) and that it was “enough” if defendants had agreed to “to commit a crime to violate the law,” did not inform the jury that, in order to convict under § 1959, it must find that defendants had conspired to commit murder in order to maintain or in *951 crease their respective positions in the enterprise.
I concur in the judgment affirming the convictions, however, because defendants did not object to the erroneous parts of the trial court’s instructions. Had they done so, the court would have had an opportunity to make, and no doubt would have made, the appropriate corrections. If defendants had objected and the trial court had refused to give corrected instructions, I would think the error a ground for reversal. In the absence of objection, however, and in light of the initial correctness of the instructions and the ample sufficiency of the evidence as to the position-related-purpose element, I do not conclude thát the court’s erroneous shorthand summaries constituted plain error or resulted in a miscarriage of justice. Accordingly, I concur in the judgment.