Petition — Seymour v. United States
Supreme Court brief1978
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IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1977
No = @7= 592
JULIAN E. SEYMOUR, JR..,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
FRANK K. MARTIN
Martin, Kilpatrick & Davidson, P.C.
P.O. Box 2828
828 Broadway
Columbus, Georgia
(404) 324-7371
Counsel for Appellant
Julian Seymour
SS
Washington, OC @ CLB PUBLISHERS « LAW PRINTING CO. e@ (202) 393 0625
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1977
No.
JULIAN E. SEYMOUR, JR.,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Comes now JULIAN E. SEYMOUR, JR., through
legal counsel, and files this Petition for Writ of ©
Certiorari as required by Rule 19 through Rule 23 of
the Supreme Court of the United States and shows
unto the Court as follows:
to
REASONS FOR GRANTING REVIEW
ON CERTIORARI
Appellant Seymour contends this Petition for Writ of
Certiorari to the United States Court of Appeals for the
Fifth Circuit should be granted by the Supreme Court
of the United States for the following reasons as
established in Rule 19(b) and 23(h) of the Supreme
Court of the United States:
1.The quorum decision in this appeal, U.S. rv.
Brown, 555 F.2d 407 (Sth Cir., 1977) is a case
of first impression before the Supreme Court of
the United States.
.The question of whether or not a state or
subdivision of a state (i.e. Police Department of
Macon, Georgia) comes within the definition of
“ENTERPRISE” as set forth in 18 USC.
1962(c) and 18 U.S.C. 1961(4) is an important
question of federal law that has not been, but
should be, settled by this Court:
3. The quorum decision in this appeal, US. v
Brown, supra, has decided a federal question in
a way in conflict with applicable decisions not
disapproved by this Court, U.S. v. Holland, 552
F.2d 667, 67/ (Sth Cir., 1977), which affirms
the doctrine of LIMITED FEDERAL JURIS-
DICTION, as well as being in conflict with the
general rule of statutory construction used by
all courts in interpreting statutes, to-wit:
“governmental entities are exempt from the
operation of *[s]tatutory provisions’ which are
written in such general language as to make
them reasonably susceptible to being construed
as applicable alike both to the Government and
to private parties-’" 3 C. Sands, Sutherland
tu
Statutory Construction §62.01, at 63 (4th Ed.,
1974):
. The quorum decision in this appeal, US. y.
Brown, supra, is in conflict with decisions from
lower courts under the jurisdiction of Courts of
Appeal other than the Court of Appeals for the
Fifth Circuit, to-wit: U.S. v. Mandell, 415 F.
Supp. 997 (D. Md., 1976) holding the State of
Maryland was not within the definition of
“ENTERPRISE”. (U.S. v. Frumento, 405 F.
Supp. 23, 29-30 [E.D. Pa., 1975] holding that a
department of the State of Pennsylvania to be
an “‘enterprise’’); and
. The quorum opinion in this case is unorthodox
for the following reason. Solicitor General Hon.
Wade H. McCree, Jr. was a visiting judge on the
three judge panel that heard oral argument in
this appeal before the United States Court of
Appeals for the Fifth Circuit in 1975. For about
l¥2 years after oral argument, the current
Solicitor General remained a judge on the
United States Court of Appeals for the Sixth
Circuit. In early 1977, the current Solicitor
General resigned his judgeship to become
Solicitor General. In July, 1977 when this
decision (U.S. ». Brown, supra) was published,
the current Solicitor General did not take part
in the decision. However, the current Solicitor
General has actively directed the Government
while this case was still on appeal in the United
States Court of Appeals for the Fifth Circuit by
instructing the Government not to file its
intended Motion for Rehearing. (Letter of July
28, 1977 by U.S. Attorney Charles Erion
attached as Exhibit “B’’).
Appellant Seymour contends that an en banc
decision would have been more likely, or the
chance for an en hanc decision would have been
4
greater, had the former judge, now Solicitor
General. who heard oral argument in the United
States Court of Appeals for the Fifth Circuit
not directed the Government to cease its’
expressed intent to file a Motion for Rehearing.
The appeal involves an issue of great constitu-
tional magnitude (i.e. Crime Control Act of
1970) and it deserves and requires a decision of
more pursuasive authority and of greater judicial
weight than a mere quorum opinion arising from
the above circumstances.
Thus, Appellant Seymour feels that this
decision has departed from the accepted and
usual course of judicial proceedings as to call for
an exercise of this Court’s power of supervision.
The official opinion by the United States Court of
Appeals for the Fifth Circuit in this matter is cited as
US. v. Brown, 555 F.2d 407 (Sth Cir., 1977). A copy
of the opinion is appended as provided by Rule 23 of
the Supreme Court of the United States and marked as
Exhibit “A”.
3.
The jurisdiction of this Court is invoked on the
following grounds:
(i) The nature of the proceeding is an appeal from
4 criminal prosecution and conviction under the
provisions of 18 U.S.C. §1962(c) (1970) and 18
USC. §1961(4). (Pub. L. No. 91-452, 84 Stat.
922 [codified in various sections of 7, 11, 12. 15.
18, 19, 21, 28, 33, 42, 45, 49 & 50 U.S.C.}).
(ii) The date of the original judgment in this
appeal is July 5, 1977. The Order denying a
Motion for Rehearing en banc is dated August 24.
1977 and marked as Exhibit “C’’.
(iii) The statutory provision believed to confer
jurisdiction upon this Court is 28 USC.
§ 1254(1).
(iv) The statute in question and its validity is 48
U.S.C. §1962(c) which reads as follows:
“It shall be unlawful for any person employed
by or associated with any enterprise engaged in,
or the activities of which affect, interstate or
foreign commerce, to conduct or participate.
directly or indirectly, in the conduct of such
enterprise's affairs through a pattern” of
racketeering activity or collection of unlawful
debt.” (Appellant’s emphasis).
(v) A copy of the judgment of the United States
Court of Appeals for the Fifth Circuit in this case:
a copy of the Order on rehearing en banc is
appended as provided by Rules 19 through 23 of
the Supreme Court of the United States.
4.
The questions presented on this appeal are as
follows:
(1) Is the Police Department of Macon, Georgia an
entity that comes within the definition of
“enterprise” as set forth in 18 U.S.C. §1962(c)
and 18 U.S.C. 1961(4)?
(2) Has the Appellant been denied appellate
ie)
review of his appeal by the total failure of the
United States Court of Appeals for the Fifth
Circuit to consider and decide seven (7) of his
twelve (12) Issues Presented for Review, to-wit:
Issues Presented For Review Numbers Six (6),
Seven (7). Eight (8). Nine (9), Ten (10), Eleven
(11) and Twelve (12)? and
(3) Has the United States Court of Appeals for
the Fifth Circuit misapprehended and misapplied
the “plain error” doctrine, to wit: Can Appellant
Seymour be legally convicted on one (1) count of
a three (3) count indictment which the United
States Court of Appeals for the Fifth Circuit
stated several times in its decision was CONSTITU-
TIONALLY DEFECTIVE?
(Count One (1) was affirmed while Counts Two
(2) and Three (3) were reversed). In essence, was
Count One (1) fatally “tainted” by a constitu-
tionally defective indictment?
5.
CONCISE STATEMENT OF CASE
All Appellants were members of the Macon, Georgia
Police Department. A 3-count indictment charged the
Appellants as follows: Count One alleged a violation of
18 U.S.C. §1962(c) (1970) and 18 U.S.C. §1961(4) by
racketeering activities such as receiving bribes; Count
Two alleged a violation of 18 U.S.C. §1962(d) (1970)
‘ by racketeering activities such as receiving bribes: and
Count Three alleged a violation of 18 U.S.C. §1511
(1970) by conspiring to obstruct enforcement of
Georgia misdemeanor criminal statutes prohibiting a
lottery.
After almost two weeks of trial, Appellants were
convicted on all counts except Appellant Cranford who
was acquitted on Count One, on appeal, the United
States Court of Appeals for the Fifth Circuit reversed
all convictions on Counts Two and Three and affirmed
all convictions on Count One.
This appeal is now before this Court on a petition
for a Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit.
WHEREFORE, the Appellant Seymour prays unto
this Court as follows:
(a) That this petition for a Writ of Certiorari to
the United States Court of Appeals be allowed
filed:
(b) That this Court enter an Order granting this
petition and thereby proceed to consider this
petition on its merits in the manner provided by
the rules of this Court;
(c) That this Court render a _ decision, after
granting oral argument if deemed appropriate,
reversing Appellant’s conviction on Count One of
the indictment in this appeal for the reasons stated
within this petition and remand this appeal to be
disposed of in a manner consistent with ‘this
Court’s opinion; and
(d) Appellate Seymour be allowed to adopt and
incorporate by reference the respective petitions
for Writ of Certiorari filed with this Court by his
respective co-appellants.
(ec) That this Court grant such additional relief to
Appellant Seymour as it deems to be in the
interest of justice in this case.
This 22nd day of October, 1977.
FRANK K. MARTIN
Martin, Kilpatrick & Davidson, PC.
P.O. Box 2828
828 Broadway
Columbus, Georgia
(404) 324-7371
Counsel for Appellant Julian Seymour
la
EXHIBIT “A”
UNITED STATES of America,
Plaintiff-Appellee,
Lonnie M. BROWN, Robert L. Newsome, James B.
Finney, Julian E. Seymour, Jr., and Benjamin Clyde
Cranford, Jr., Defendants-Appellants.
No. 75-2482.
United States Court of Appeals,
Fifth Circuit.
July $5, 1977.
The United States District Court for the Middle
District of Georgia, Wilbert D. Owens, Jr., J.. convicted
defendants, former city police officers. of violations of
several provisions of Organized Crime Control Act of
1970, and defendants appealed. The Court of Appeals,
Tjoflat, Circuit Judge. held that: (1) city’ police
department was an “enterprise” for purpose of
racketeering statute: (2) racketeering statute did not
violate ex post facto clause of the United States
Constitution; (3) trial court did not commit reversible
error in instructing jury that it had duty to reconcile, if
it could, testimony of all witnesses so that each might
have spoken the truth; (4) conspiracy convictions were
obtained in vidlation of ex post facto principle
embodied in due process clause; (5) racketeering
2a
convictions did not allow inference that jury had found
that conduct constituting conspiracy took place after
effective date of conspiracy statutes; (6) trial court
committed prejudicial error in failing to give cautionary
instructions concerning coconspirator exception § to
hearsay rule; (7) sentences imposed pursuant to
conspiracy convictions were illegal; (8) trial court did
not err in establishing witness interview procedure, and
(9) trial court did not err in removing juror in midtrial.
Affirmed in part, reversed in part and remanded.
1. Criminal Law 1177
Where certain defendants were given concurrent
sentences upon convictions of two counts of indict-
ment, where convictions pursuant to first count were
valid and where other defendant was only convicted
pursuant to second count, Court of Appeals would
review merits of convictions of all the defendants
pursuant to the second count, even though concurrent
sentence doctrine would normally have pretermitted
review of convictions under second count with respect
to those defendants convicted under both counts of
indictment.
2. Gaming 79(1)
Under statute defining “enterprise” as used in
racketeering statute as “any individual, partnership,
corporation, association, or other legal entities, and any
union or group of individuals associated in fact
3a
although not a legal entity,” and “enterprise” includes
public as well as private’ entities. 18 U.S.C.A.
§ §1961(4), 1962(c).
See publication Words and Phrases for other
judicial constructions and definitions.
3. Statutes 217.4
Where a statute is plain on its face, recourse to
legislative history is unnecessary; if language of statute
is plain, sole function of the courts is to enforce it
according to its terms.
4. Statutes 233
Generally, absent indicia indicating a contrary result,
government entities are exempt from operation of
Statutory provisions which are written in such general
language as to make them reasonably susceptible to
being construed as applicable alike both to government
and to private parties; however, since rule is founded on
policy of preserving interest of government and public
from injurious consequences of a statute, rule is not
valid where statute is advantageous to those interests.
5. Gaming 79(1)
Under statute defining “enterprise” for purpose of
racketeering statute as “any individual, partnership,
corporation, association, or other legal entities, and any
Za
4a
, union or group of individuals associated in fact
“ajthough not a legal entity,’
b
city police department was
an ‘“‘enterprise.”’ 18 U.S.C.A. §§1961(4), 1962(c).
6. Constitutional Law 197
Where a law makes criminal an action which was
done before passing of law and which was innocent
when done and where law either punishes such action,
aggravates a crime, Or makes crime greater than it was
when committed, law is an “ex post facto law.”
U.S.C.A.Const. art. 1, §9, cl. 3.
See publication Words and Phrases for other
judicial constructions and definitions.
7. Constitutional Law 200
Gaming 63(1)
Racketeering statute. under which a “pattern of
racketeering activity’ is deemed to exist if at least two
acts of racketeering take place within ten years of each
other and at least one of these acts has occurred after
effective date of Organized Crime Control Act of 1970,
does not violate ex post facto laws prohibition of
United States Constitution.- U.S.C.A.Const. art. 1, §9,
cl. 3: 18 U.S.C.A. § §1961(5), 1962(c).
8. Constitutional Law 200
Where several acts of racketeering were alleged to
have occurred after effective date of Organized Crime
Sa
Control Act Of 1970 and where jury was specifically
instructed that to convict under racketeering statute.
jury had to have been shown that defendants were
involved in commitment of at least one act of
racketeering after effective date of Act, racketeering
convictions were not precluded by ex post facto clause
of United States Constitution. U.S.C.A Const. art. 1,
§9, cl. 3; 18 U.S.C.A. §§1961(5), 1962(c).
9. Criminal Law 822(14)
Error committed by trial court in instructing jury
that it had duty to reconcile, if it could, testimony of
all witnesses so that each might have spoken truth was
harmless where jurors were also charged that they were
sole judges of the facts, weight of evidence, and
credibility of witnesses and that nothing court said was
intended to interfere with their exclusive responsibility
to determine factual issues in the case.
10. Criminal Law 147
Gaming 63(2)
Reference to state law in federal racketeering statute
is for purpose of defining conduct prohibited and is not
meant to incorporate state statute of limitations or
procedural rules. 18 U.S.C.A. § §1961(a), 1962(c).
oa —_ |
6a
11. Constitutional Law 258(1)
Where count of indictment charging conspiracy to
violate racketeering statute alleged that conspiracy was
formed at time prior to October 15, 1970, effective
date of statute under which defendants were charged,
and that conspiracy continued until return of indict-
ment, and where jury was not advised of effective date
in connection with conspiracy charge nor was jury
cautioned that verdict of guilty could not be returned
unless Government demonstrated existence of con-
spiracy of which the accused was a member after
effective date, conspiracy convictions were obtained in
violation of ex post facto principle embodied in due
process clause. U.S.C.A.Const. Amend. 5; 18 U.S.C.A.
§1962(c).
12. Constitutional Law 200, 258(1)
Ex post facto clause itself only prohibits Congress
from enacting legislation retroactively punishing acts
which were innocent when done; however. principle
embodied in clause is encompassed in concept of due
process and 1s therefore a limitation on the power of
the other two branches of government as well.
U.S.C.A.Const. art. 1, §9, cl. 3; U.S.C.A.Const. Amend.
5.
13. Constitutional Law 258(1)
Principle on which ex post facto clause is based, the
notion that persons have a right to fair warning of that
7a
conduct which will give rise to criminal penalties, is
fundamental to our concept of constitutional liberty,
and, as such, that right is protected against judicial
action by due process clause of Fifth Amendment.
U.S.C.A.Const. art. 1, §9, cl. 3: U.S.C.A.Const. Amend.
5.
14. Criminal Law 1030(2)
Even if defendants’ pretrial motions claiming that
indictment violated ex post facto and due process
clauses were insufficient to present constitutional issue
to district court and thus to preserve it for appeal,
Court of Appeals could, under plain error doctrine,
notice violation of ex post facto principle embodied in
due process clause on appeal of convictions. U.S.C.A.
Const. art. 1, §9, cl. 3; U.S.C.A.Const. Amend. 5.
15. Criminal Law 1030(1)
“Plain error’ is that which is both obvious and
substantial.
See publication Words and Phrases for other
judicial constructions and definitions.
16. Criminal Law 1030(1)
Court of Appeals may sua sponte notice plain error
on appeal of criminal conviction.
8a
17. Criminal Law 1030(2)
Errors of constitutional magnitude will be noticed
more freely under plain error rule than less serious
errors.
18. Criminal Law 1043(3)
Closer scrutiny may be appropriate on appeal of
criminal conviction when the failure to preserve precise
grounds for error is mitigated by an objection on
related grounds.
19. Criminal Law 1165(1)
Error committed by trial court in allowing jury to
convict defendant of conspiracy for his complicity in
“protection” racket which occurred prior to effective
date of conspiracy statute resulted in substantial
prejudice to defendant and required reversal of
conspiracy conviction. 18 U.S.C.A. §1962(d).
20. Criminal Law 1144.16
Facts that certain defendants were convicted of
rack 2teering and that such convictions required finding
that each defendant was involved in an act of
racketeering after effective date of racketeering statute
did not permit inference that jury had found that
defendants had engaged in concerted activity in
9a
pursuance of a common object after effective date of
statute and thus did not permit inference that those
convicted of racketeering actually participated in
conspiracy, after effective date of statute, to engage in
pattern of racketeering. 18 U.S.C.A. §1962(c. d).
21. Criminal Law 753.3, 1036.8
No matter how conclusive the evidence, court may
not direct verdict of guilty in whole or in part, and any
instruction directing verdict of guilty amounts to plain
error which may be noted on appeal even if not
assigned as error.
22. Criminal Law 1036.1(2)
Even though objections were not made by defendants
every time Government introduced evidence of conduct
and conversations which occurred prior to effective date
of criminal statutes, where strenuous objections were
lodged early in trial and where trial judge postponed his
rulings on admissibility and deliverance of limiting
instructions until later, defendant sufficiently preserved
alleged evidentiary error on appeal.
23. Criminal Law 673(2), 1173.2(9)
In prosecution for racketeering and conspiracy, trial
court committed prejudicial error in failing to give
contemporaneous’ limiting instructions concerning
10a
evidence of conduct and conversations which occurred
prior to effective date of statute so that jury would not
use evidence in support of racketeering offense in
considering conspiracy counts. 18 U.S.C.A. §1962(c,
d).
24. Criminal Law 673(4)
Gaming 102
In prosecution for racketeering and conspiracy,
evidence concerning conduct and conversations which
occurred prior to effective date of organized Crime
Control Act of 1970 was admissible as against the
defendants involved to demonstrate criminal intent or
to explain modus operandi, but such evidence was not
admissible against defendants not involved in such
conduct or conversations, and thus trial court erred in
failing to give limiting instructions to insure that jury
would not consider evidence in determining guilt or
innocence of those defendants against whom evidence
was not admissible.
25. Criminal Law 423(1)
Under Federal Rules of Evidence, there is no
‘co-conspirator exception to the hearsay rule,’ because
a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy is by
definition not a hearsay statement. Federal Rules of
Evidence, rule 801(d)(2E), 28 U.S.C.A.
lla
26. Criminal Law 427(2)
For a coconspirator’s out-of-court declaration to be
used as evidence against a defendant, government, at
some point during the trial, must establish by
independent evidence that defendant was a member of
the conspiracy and that declaration was made in the
course of and in furtherance of the conspiracy. Federal
Rules of Evidence, rule 801(d)(2)(E), 28 U.S.C.A.
27. Criminal Law 736(1)
Where case was tried prior to effective date of
Federal Rules of Evidence, it was for jury to decide
whether Government established by independent
evidence that defendant, against whom coconspirator’s
out-of-court declaration was sought to be used as
evidence, was a member of the conspiracy and whether
declaration was made in course of and in furtherance of
the conspiracy. Federal Rules of Evidence, rules 104,
104(a, b), 28 U.S.C.A.
28. Criminal Law 673(1), 1173.2(9)
In conspiracy prosecution, trial court committed
prejudicial error in failing to give cautionary instruc-
tions to jury when evidence was proffered under
coconspirator exception to hearsay rule. 18 U.S.C.A.
§ 1962(d).
12a
29. Criminal Law 982.3(2)
In imposing sentence upon conspiracy conviction, trial
court erred in ordering probationary terms to begin im-
mediately and to continue until imprisonment called for
by sentences under other counts commenced and in
ordering that, upon completion of prison sentences for
such other counts, defendants would again be placed
under court’s supervision for whatever portion of five-
year probationary term remained. 18 U.S.C.A. §§1511,
1911, 3651; Fed.Rules Crim.Proc. rule 38(a)(4), 18
U.S.C.A.
30. Criminal Law 772;(4)
Where indictment charging defendants with con-
spiracy to obstruct enforcement of state antilottery
laws alleged that conspiracy had begun at some time
prior to effective date of statute under which
defendants were charged, where indictment set forth
several overt acts which had their inception prior to
effective date of statute. and where trial court failed to
advise jury of critical importance to be attached to
effective date of statute. convictions under such
indictments were precluded. 18 USCA. §1911;
U.S.C.A.Const. Amend. 5; U.S.C.A.Const. art. 1, §9, cl.
2
-~*
13a
31. Criminal Law 666%
A defendant is entitled to have access to any
prospective witness although such right of access may
not lead to an actual interview.
32. Criminal Law 666%
A witness may refuse to be interviewed or may
dictate circumstances under which he will submit to an
interview.
33. Criminal Law 666%
In prosecution for racketeering and conspiracy, trial
court did not err in setting out procedure whereby if
attorneys for defendants wished to interview any of the
Government's witnesses they could do so only by
calling deputy clerk who would contact witness and
advise him that he had right to grant or refuse interview
and who would accompany witness to interview if
witness decided to grant an interview, in view of fact
that trial court made it clear that procedures were an
experiment and in view of defendants’ failure to come
forward with specific suggestions or objections to the
procedure.
34. Jury 149
In prosecution for racketeering and conspiracy, trial
court did not err in ordering mid-trial removal of juror,
14a
even though better practice would have been for trial
court to have consulted parties before launching
weekend investigation of juror, in view of fact that
court’s investigation of matter was limited to question-
ing deputy marshals.
S. Phillip Brown, Macon, Ga. (Court-appointed), for
Brown
Frank K. Martin, Columbus, Ga., for Seymour.
Benjamin M. Garland, Macon, Ga. (Court-appointed),
for Newsome.
Harry F. Thompson, Macon, Ga., for Cranford.
D.L. Rampey. Jr., Elberton, Ga., for Finney.
Ronald T. Knight, U.S. Atty.. O. Hale Almand, Jr..
Atty., Macon, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the
Middle District of Georgia.
Before GODBOLD and TJOFLAT, Circuit Judges.*
TJOFLAT, Circuit Judge:
(1] The appellants. former officers of the Macon,
Georgia, police department, were charged in a three
count indictment with protecting various vice-related
activities in violation of several provisions of the
Organized Crime Control Act of 1970 (the Act).' They
*The Honorable Wade H. McCree, Jr., heard oral argument on
this case but did not participate in this decision. This case is
being decided by a quorum. See 28 U.S.C. §46(d) (1970).
' Pub. L. No. 91-452, 84 Stat. 922 (codified in various sections
of 7. 11. 12. 15, 18, 19, 21, 28, 33, 42, 45, 49 & 50 U.S.C.)
1Sa
were convicted following a jury trial in May 1975.? In
this appeal, appellants question the validity of the
? Appellants Seymour, Brown and Finney were convicted on
all counts; appellant Cranford was acquitted on Count | but
convicted on Counts II and III; and appellant Newsome was
convicted on Counts I and II. (Newsome was not charged in
Count III.)
The sentences imposed were as follows: as to Count I,
Seymour, Brown, Finney and Newsome received prison terms of
fifteen years, twelve years, twelve years and ten years,
respectively, and they received the identical Sentences, imposed
concurrently, on Count II. Appellant Cranford was sentenced to
a twelve year prison term on Count II. On Count III, the district
court fashioned the same sentence for the four appellants
convicted: “placed on probation for a period of FIVE (5)
YEARS, service of said probation sentence to begin this date and
continue until such time as the defendant begins the service of
sentences of imprisonment imposed this date, and the remainder
of the probation time shall begin at such time as the defendant
shall have completed the service of the sentences of imprison-
ment of this date imposed.” For a discussion of the propriety of
this sentencing, see Part V infra at note 43.
As our analysis disposing ofthis appeal will disclose, the
convictions on Count I are valid. See Part III infra. As to all
appellants except Cranford, the concurrent sentence doctrine
would pretermit review of the Count II convictions. See generally
United States v. Strickland, 509 F.2d 273 (Sth Cir. 1975).
However, since the jury acquitted Cranford on Count I, we are
still called upon to assess the merits of the Count II prosecution
as to him. As our conclusion is that his Count II conviction
cannot stand, we deem it appropriate to review the merits of the
Count II convictions of the remaining appellants, and to set them
aside as well. See Part IV infra.
Finally, because of our disposition of Cranford’s Count II
conviction, we must consider his attack on Count III. As we shall
point out in Part V infra, it, too, must be reversed and with it
the convictions of the other appellants charged.
16a
indictment, a variety of procedural and evidentiary
rulings, and the final instructions to the jury. To place
these issues in proper perspective and to facilitate their
analysis, we shall first set forth what the indictment
alleged and what the evidence at trial disclosed.
I. THE INDICTMENT
Count I of the indictment is grounded on 18 U.S.C.
§ 1962(c) (1970), which provides:
It shall be unlawful for any person employed by
or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity or
collection of unlawful debt.
It was alleged that appellants violated this section
because, as employees of the City of Macon police
department, they knowingly participated in racketeer-
ing activities from 1966 through July 1974.° The
3The indictment alleged that the police department was an
“enterprise” within the meaning of 18 U.S.C. §1961(4) (1970),
which defines the term to include “any individual, partnership,
corporation, association, or other legal entity, and any union or
group of individuals associated in fact although not a legal
entity.” Under section 1961(1), “racketeering activity Is defined
as engaging in any one of a number of enumerated offenses,
including certain forms of bribery, gambling and moonshining. A
“pattern of racketeering activity” is defined in section 1961(5)
to mean “at least two acts of racketeering activity, one of which
occurred after the effective date of [the Act] and the last of
which occurred within ten years (excluding any period of
imprisonment) after the commission of a prior act of
racketeering activity.”
17a
forbidden activities were alleged to have included the
solicitation and acceptance of bribes to protect
gambling, prostitution and the illicit manufacture,
distribution and sale of whiskey in the Macon
community.*
*Seventeen acts of racketeering were alleged, ten of which
were detailed in Count I, seven being incorporated by reference
from Count III. The ten were:
(1) From 1966 to 1972 Newsome accepted bribes not to
enforce Georgia law pertaining to the unlawful transportation
and sale of alcoholic beverages and the licensing of individuals
and establishments selling alcoholic beverages.
(2) From March 1967 to 1970 Finney accepted bribes not to
enforce Georgia laws pertaining to the unlawful transportation
and sale of alcoholic beverages and the licensing of individuals
and establishments selling alcoholic beverages.
(3) From 1968 to May 1974 Finney and Newsome accepted
bribes not to enforce Georgia laws pertaining to the licensing of
individuals and establishments selling alcoholic beverages.
(4) From 1968 to July 1974 Finney and Newsome accepted
bribes not to enforce Georgia laws pertaining to the unlawful
transportation and sale of alcoholic beverages and the licensing of
individuals and establishments selling alcoholic beverages.
(5S) From 1969 to 1970 Newsome accepted bribes not to
enforce Georgia laws pertaining to the unlawful transportation
and sale of alcoholic beverages and the licensing of individuals
and establishments selling alcoholic beverages.
(6) From 1970 to December 1973 Seymour, Cranford,
Brown and Finney accepted bribes from William Prentis Tucker
not to enforce Georgia laws pertaining to gambling.
(7) During 1971 Seymour and Brown accepted bribes from
Guy Allison Odom not to enforce Georgia laws pertaining to
prostitution.
(8) From 1971 to 1973 Seymour and Finney accepted bribes
not to enforce Georgia laws pertaining to prostitution.
(9) During July 1973 Seymour accepted bribes not to enforce
Georgia laws pertaining to gambling and to the licensing of retail
liquor establishments.
q (continued)
18a
Count II alleged a violation of 18 U.S.C. §1962(d)
(1970), which provides, “It shall be unlawful for any
person to conspire to violate any of the provisions of
[sections 1962(a), (b), or (c)]).” It was alleged that
appellants, again in their capacity as police officers,
conspired to violate section 1962(c) by conducting the
affairs of the police department through the pattern of
racketeering activities just described.© The conspiracy
was alleged to have begun at an unknown time prior to
October 15, 1970, and to have continued until the
return of the indictment on March 25, 1975.
(foutnote continued from preceding page)
(10) From August 1973 to December 1973 Seymour,
Cranford, Brown and Finney accepted bribes not to enforce
Georgia laws pertaining to gambling.
The seven acts incorporated from Count III were:
(1) From October 15, 1970, and prior thereto through
December 18, 1973, William Prentis Tucker operated an illegal
numbers lottery.
(2) From October 15, 1970, and prior thereto through
December 1973, Tucker bribed Seymour.
(3) From October 15, 1970, and prior thereto through
December 1973, Tucker bribed Brown.
(4) From October 15, 1970, and prior thereto through
December 1973, Tucker bribed Cranford.
(5) Between August and October 1971, Tucker paid Brown
$22,500.
(6) On December 18, 1973, Tucker possessed records of his
numbers lottery business.
(7) On December 18, 1973, Daisy Bell Hughes possessed
$5,000, numbers lottery tickets and other lottery paraphernalia.
‘The Court II allegations incorporated by reference the
seventeen racketeering activities specified in Count I. Listed as
unindicted co-conspirators were thirteen individuals and other
unknown. The bill of particulars identified eight additional
co-conspirators but indicated that there were more who were still
unknown.
19a
In Count Ill the appellants and others were charged
with violating 18 U.S.C. §1511 (1970)® by conspiring
to obstruct the enforcement of Georgia criminal law
with the intent to facilitate an illegal lottery which was
in continuous operation in excess of thirty days and
involved over five persons.’ The conspiracy allegedly
®Section 1511 provides in part:
(a) It shall be unlawful for two or more persons to
conspire to obstruct the enforcement of the criminal laws
of a State or political subdivision thereof, with the intent
to facilitate an illegal gambling business if—
(1) one or more of such persons does any act to
effect the object of such a conspiracy;
(2) one or more of such persons is an official or
employee, elected, appointed, or otherwise, of such
State or political subdivision; and
(3) one or more of such persons conducts, finances,
manages, supervises, directs, or owns all or part of an
illegal gambling business.
(b) As used in this section—
(1) “illegal gambling business” means a gambling
business which—
(i) is a violation of the law of a State or political
subdivision in which it is conducted;
(ii) involves five or more persons who conduct,
finance, manage, supervise, direct, or own all or part of
such business; and
(iii) has been or remains in substantially continuous
operation for a period in excess of thirty days or has a
gross revenue of $2,000 in any single day.
(2) “gambling” includes but is not limited to
pool-selling, bookmaking, maintaining slot machines,
roulette wheels, or dice tables, and conducting lotteries,
policy, bolita or numbers games, or selling chances
therein.
7Named as principals in the lottery in addition to the
appellants charged were William Prentis Tucker, who ran the day
to day operations, and Daisy Bell Hughes, the bookkeeper. Seven
overt acts were allegedly committed in pursuit of this conspiracy.
See note 4 supra.
20a
began at an unspecified time prior to October 15, 1970,
and ended when the indictment was returned.
Il. THE EVIDENCE
The evidence recounted the efforts of the appellants
to protect vice-related criminal activity in the Macon
community. The first witness, Shirley Dixon, the
twenty-six year old daughter of a deceased moonshiner
and lottery operator, Talmadge Dixon, set the stage by
revealing how her father had been able to operate with
police protection from the 1950's until his retirement
in 1966. When she was seven or eight years old she
would accompany her father on his trips every two or
three weeks to the office of the Chief of Detectives, W.
A. Bargeron (who committed suicide prior to the
indictment), where Dixon’s moonshine and lottery
operations would be discussed and the Chief would be
given an envelope containing from one hundred to six
hundred dollars. A similar envelope would be given to
appellant Seymour. Ms. Dixon also recalled a visit to a
still site in 1961 where her father discussed business
with appellants Seymour and Finney.
Shirley Dixon was followed by fifty prosecution
witnesses through whom the Government showed the
expansion of the protection racket during the 1960's as
additional officers became involved and more activities
were brought under its umbrella. In the mid-1960’s, for
example, Bessie Jordan and Thomas Williams began
weekly payments to appellants Finney and Newsome to
facilitate their moonshine sales. During the same period,
James Hughes began paying Seymour so his prostitution
2la
business at the Dempsey Hotel could flourish. The
protection continued when the business moved to the
Central Hotel in 1973 and was extended to cover his
involvement in the management of William Prentis
Tucker’s lottery operation.* Tucker paid for protection,
not only to Seymour, but also to appellants Brown and
Cranford, who had become full participants in the
scheme. Other illegal lotteries were allowed to operate
at the same time, principally those run by Curtis Zeigler
and Rudolph Flanders.
In the early 1970's a variety of organized gambling
activities began to surface at places such as the
Sportman’s Club, the Elk’s Club. the Amvets Club, and
the Sports Palace. The proprietors there also paid for
the privilege of doing business. The slot machines and
other gambiing devices used at these establishments
were manufactured and serviced by two local music
companies, which in turn paid a premium to the police
officers to stay in operation.’ Individuals involved in
these ventures testified for the Government. Testifying,
too, were operators of illicit whiskey outlets and
legitimate nightclubs which identified one or more of
the appellants as the officer he had paid in order to
®See note 7 supra. Tucker and his confederates were the
subject of a separate indictment, and their convictions on that
indictment were affirmed by another panel of this court. United
States v. Tucker, 526 F.2d 279 (Sth Cir.), cert. denied, 425 US.
958, 96 S.Ct. 1738, 48 L.Ed.2d 203 (1976).
*The owners and employees of these companies were indicted
separately and convicted. On appeal, their convictions were
affirmed. United States v. Hawes, 529 F.2d 472 (Sth Cir. 1976).
22a
operate free of police interference. Pimps and prosti-
tutes also implicated one or more of the appellants as
having received dividends in cash or kind.
The accounts of these vice activities were buttressed
by the testimony of several law enforcement officers.
Some were former Macon police officers who had
actually participated in the pay-off schemes. Others
were officers who had either observed payoffs or had
declined offers to join the conspiracy. Still others were
officers who had been reprimanded by Chief Bargeron
or appellant Seymour for attempting to enforce the vice
laws.'°
The evidence demonstrated how well the appellants
succeeded in providing effective protection to vice
activity in Macon. The key to the entire operation was
the policy instituted by Chief Bargeron and appellant
Seymour'' of leaving vice law enforcement exclusively
to the vice squad, where the officers were willing to
provide protection. Officers assigned to other details
were instructed to pass all information pertaining to
vice-related crime to the vice squad. Many who did
One officer, for example, testified that on one occasion he
arrested a prostitute who threatened that “if you put your G.D.
hands on me Seymour will hear about this and you will be out
on the streets.” The following day Seymour confronted the
officer, ordering him to stay away from the area where he had
made the arrest. He added that continued interference with vice
squad business would cost him his job. Other officers related
similar encounters following the arrest of prostitutes.
"During the 1960°s Seymour rose rapidly through the ranks,
from sergeant to lieutenant and then to captain. The promotions
were arranged by Bargeron in order that Seymour could be
placed in charge of the vice squad.
23a
testified that their information was not acted on and
that the activities they reported continued with
impunity. Those who disobeyed and attempted to
enforce the vice laws were reprimended. On occasion,
when an arrest had been made or contraband seized,
Seymour would instruct the officer involved to try to
fix the case or to arrange for the return of the
contraband
In sum, the Government’s proof established the
existence of an extensive protection racket through
vice-squad manipulation. It was conceived in the late
1950’s grew during the 1960's, and by the early 1970's
embraced a wide variety of activities. The operation was
nourished by monetary payments, gifts and sexual
favors to the officers, and it continued practically
unabated until the federal grand jury investigation
which led to the indictment in this case.
lll. THE CONVICTIONS ON COUNT I
Appellants Seymour, Finney, Brown and Newsome
claim that their convictions on Count I must be
reversed because the indictment is defective in two
respects. First, they argue that the indictment fails to
charge a crime under section 1962(c) because the
Macon police department is not an “enterprise” as that
term is defined in 18 U.S.C. §1961(4) (1970).!?
Second, they claim that section 1962(c) violates the ex
post facto clause of the Constitution’? because it
'2See note 3 suprz.
3) S$ Const. art. 1, §9, cl. 3, states, “No Bill of Attainder or
ex post facto Law shall be passed.”
24a
operates in this case to punish the appellants for acts
they committed prior to the effective date of the
Aci—October 15, 1970. Appellants also urge reversal of
the Count I convictions because of errors in the jury
instructions. We wiil consider each of these contentions
in turn.
A. The Enterprise Issue
18 U.S.C. §1961(4) (1970) defines enterprise as
“any individual, partnership, corporation, association, or
other legal entity, and any union or group of
individuals associated in fact although not a legal
entity.” The thrust of appellants’ argument is that this
language cannot be construed to encompass a municipal
police department. They submit that the statute on its
face limits an “enterprise” to entities of a private,
commercial nature and to those less formal, private
groups which are “associated in fact.” If this limitation
does not flow from the plain meaning of the words, it
is urged, resort to legislative intent should lead this
court to a narrowed definition. Appellants point to the
congressional hearings which, they claim, give no
indication that Congress intended the term to include
states, counties, cities or other political entities.
Congress is said to have been concerned only with the
problems posed by organized crime’s attempts to
infiltrate and control legitimate businesses and unions.
(2, 3] We are not persuaded by appellants’ interpre-
tation of section 1961(4) or their assessment of
congressional intent. Initially, it should be observed that
the actual language of the statute is very broad,
te ee et ee
25a
encompassing any “legal entity’ and any “group of
individuals associated in fact although not a legal
entity.” It must be conceded at the very least that the
Macon police department consists of a group of
individuals associated in fact, and it may well be,
although we need not decide, that the department even
rises to the level of a “legal entity”.'* Second,
appellants’ distinction between the public and private
sectors has no foundation in the statute. In the
definition, individuals and corporations are considered
legal entities and, thus, enterprises. An individual, of
course, may as easily be a public official as a
businessman or union member. Similarly, a corporation
may be either a private concern or a public or
quasi-public entity such as a municipality or utility. In
short, the language is broad enough to include public as
well as private entities.'®
If one does consider the legislative history, however,
there is ample evidence to indicate that the con-
gressional focus was not as narrow as appellants claim.
'*The legal status of the Macon police department is not clear
from the record. Several city ordinances were introduced into
evidence to establish the duties, obligations, rights and privileges
of various officers of the police department. Whether the
department is an entity created by the municipal charter or is a
creature of legislative design cannot be determined from the
record.
'SWhere a statute is plain on its face recourse to legisiative
history is unnecessary. See Caminetti v. United States, 242 U.S.
470, 485, 37 S.Ct. 192, 194, 61 L-Ed. 442 (1917) (“the meaning of
4a Statute must, in the first instance, be sought in the language in
which the act is framed, and if it is plain,...the sole function
of the courts is to enforce it according to its terms’’).
26a
The congressional statement of findings and purposes
provides in part,
The Congress finds that (1) organized crime in
the United States is a highly sophisticated,
deversified, and widespread activity that annually
drains billions of dollars from America’s economy
by unlawful conduct and the illegal use of force,
fraud. and corruption:...($) this money and
power are increasingly used to infiltrate and
corrupt legitimate business and labor unions and to
subvert and corrupt our democratic processes; (4)
Organized crime activities in the United States
weaken the stability of the Nation’s economic
system, harm innocent investors and competing
Organizations, interfere with free competition,
seriously burden interstate and foreign commerce,
threaten the domestic security, and undermine the
general «welfare of the Nation § and _ its
citizens ... Organized Crime Control Act of 1970,
Pub.L. No. 91-452, §1. 84 Stat. 922 (emphasis
added).
The language in finding (3) indicates a concern clearly
beyond the infiltration and corruption of legitimate
businesses and labor unions by organized crime. Indeed,
Congress was concerned with the impact of organized
crime on the entire democratic process itself. This
concern is further reflected in finding (4), which
indicates a congressional awareness of the threat
organized crime poses to the domestic security and the
general welfare of the country. It would be anomalous
for us to recognize this broad congressional statement
and yet construe the word “enterprise” to encompass
only those entities or groups of individuals within the
private sector. Moreover, the narrow construction urged
by appellants would also ignore Congress’ mandate that
-
27a
“(t]he provisions of this title shall be liberally
construed to effectuate its remedial purpose....” /d.
§904. In the face of such a clear expression of
legislative intent, we can find no justification for
limiting the language of section 1961(4) so as to
exclude individuals and entities in the public sector.
{4, 5) Our approach to this definition is in accord
with that taken by our court in prior cases. In United
States v. Hawes, 529 F.2d 472 (Sth Cir. 1976), we
indicated that the term “enterprise” in section 1961(4)
was not to be limited to legitimate businesses, but was
to be given a broad interpretation to include the
illegitimate as well. Subsequently, we found an
enterprise in a group of three individuals who were
running rigged card games in Las Vegas and Lake Tahoe
hotel rooms. United States v. Morris, 532 F.2d 436,
442 (Sth Cir. 1976).'® In sum, we are convinced that
'®The inclination of this court to give the term “enterprise”
an expansive interpretation is consistent with the attitude taken
by other circuit courts as well. See, e.g., United States v. Parness,
503 F.2d 430 (2d Cir. 1974), cert. denied, 419 U.S. 1105, 95
S.Ct. 775, 42 L.Ed.2d 801 (1975); United States v. Cappetto,
502 F.2d 1351 (7th Cir. 1974), cert. denied, 420 U.S. 925, 95
S.Ct. 1121, 43 L.Ed.2d 395 (1975). While no other circuit has
yet explicitly considered the issue presented here, a district court
has held that a public entity is embraced within the section’s
definition. United States v. Frumento, 405 F.Supp. 23, 29-30
(E.D.Pa. 1975) (Pennsylvania Department of Revenue’s Bureau of
Cigarette and Beverage Taxes held to be an “enterprise’’). But see
United States v. Mandel, 415 F.Supp. 997 (D.Md. 1976) (State
of Maryland held not to be an “enterprise”).
It should be noted that there is a general rule of statutory
construction that, absent indicia indicating a contrary result,
governmental entities are exempt from the operation of
“[s]tatutory provisions which are written in such general
(continued)
28a
the statutory language. the legislative history and the
case law compel the conclusion that the Macon police
department is an “enterprise” within the meaning of
section 1961(4).
B. The Ex Post Facto Issue
Although the effective date of section 1962(c) was
October 15, 1970, the section can be applied by the
Government to prosecute anyone who conducted an
enterprise through a pattern of racketeering activity
having its inception prior to that date. This is because a
“pattern of racketeering activity” is deemed to exist if
at least two acts of racketeering take place within ten
years of each other and at least one of these acts has
occurred after the effective date of the Act.'” Thus,
since the last act of racketeering specified in Count I of
the indictment was alleged to have occurred in July
1974, the Government was authorized to establish a
“pattern of racketeering activity’ by showing one or
(footnote continued from preceeding page)
language as to make them reasonably susceptible to being
construed as applicable alike both to the government and to
private parties...” 3 C. Sands, Sutherland Statutory Construc-
tion §62.01, at 63 (4th ed. 1974). However, “[s]ince the rule is
founded on the policy of preserving the interests of government
and the public from the injurious consequences of a statute, the
validity of the rule is destroyed where a statute is advantageous
to those interests.” /d. §62.02, at 72 (emphasis in original). This
exception seems pertinent here, for by bringing governmental
entities within the reach of the statute the government and the
public enjoy its protection against racketeering.
'7See note 3 supra.
29a
more additional acts of racketeering during the previous
ten vears. Indeed, the Government charged appellants
with conducting the affairs of the police department
through such a pattern beginning in 1966. It is this
type of application of section 1962(c) that appellants
contend is proscribed by the ex post facto clause. The
Government's response is, as might be expected, that
section 1962(c) is saved from the operation of the
clause because a conviction cannot be obtained unless it
is established that an act of racketeering occurred after
the section’s effective date.
(6. 7] The Supreme Court has defined an ex post
facto law “as one ‘that makes an action done before
the passing of the law, and which was innocent when
done, criminal; and punishes such action,’ or ‘that
aggravates a crime, or makes it greater than it was,
when committed.’ ”’'* It was obviously in an effort to
avoid the ex post facto problem that Congress, in
defining “pattern of racketeering activity,” required
that at least one illegal act occur after the effective date
of the Act.'? This feature has quite properly been held
to save the statute from running afoul of the ex post
facto clause. United States v. Campanale, 518 F.2d 352
(9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct.
777, 46 L.Ed.2d 638 (1976). See also United States y.
Wechsler, 392 F.2d 344 (4th Cir.), cert. denied, 392
U.S. 932, 88 S.Ct. 2283, 20 L.Ed.2d 1389 (1968).
'SBouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct.
1697, 1702, 12 L.Ed.2d 894 (1964) (emphasis in original).
‘See note 3 supra. See also S.Rep. 91-617, 91st Cong., Ist
Sess. 158.
30a
[8] Here, several acts of racketeering were alleged to
have occurred after October 15, 1970, and the jury was
specifically instructed that to convict it must have been
shown that the accused was involved in the commit-
ment of at least one act of racketeering after that
date.?° Thus, we are convinced that Count I| did not fall
within the proscription of the ex post facto clause.
C. The Jury Instructions
{9} Of the various issues arising from the court’s
charge on Count I, the most serious is the challenge to
the use of the so-called Holland charge,*' which
2°The court charged the jury on Count I that a pattern of
racketeering, while it consists of two acts, only gives rise to
criminal liability under section 1962(c) if at least one of the acts
occurred after the enactment of the statute:
What do we mean by “pattern of racketeering
activities”? Pattern of racketeering activities requires at
least two acts of racketeering activities. You’ve got to have
at least two acts of racketeering activities, one of which
occurred after this law came into effect on October 15,
1970, and the last of which occurred within ten years after
the commission of a prior act of racketeering activity. In
other words, there’s got to be two acts and one of them
must have occurred after October 15, 1970. Both of them
could have occurred after October 15, you could have
more, but at least one, a minimum of one, must have
occurred after October 15, 1970. Record, vol. IX, at
2199-2200.
21 United States v. Holland, 526 F.2d 284 (Sth Cir.), petition
for rehearing granted, 537 F.2d 821 (Sth Cir. 1976). The
Holland charge was included in the portion of the court’s
instructions applicable to all the counts. However, it is not
necessary for us to determine whether the administration of the
(continued)
Se ee ee te
3la
instructs the jury that it has a duty to reconcile, if it
can, the testimony of all witnesses so that each shall
have spoken the truth. Initially the Holland court held
that this instruction was reversible error, for it
incorrectly stated the jury’s duty in assessing testimony
and impermissibly invaded the province of the jury as
the ultimate fact-finder. On rehearing, however, the
court concluded that in viewing the charge as a whole
the error was harmless. In reaching this conclusion, the
court pointed to the fact that a number of other
instructions were given which offset the damage done
by the improper instruction. We have since reaffirmed
the principle that, where other portions of the
instructions cure the error, the conviction will be
affirmed. United States v. McDuffie, 542 F.2d 236,
239-40 (Sth Cir. 1976).
Here the same “duty to reconcile” charge was given
verbatim that was given in Holland; however, as in
Holland and McDuffie, the jurors were also charged that
they were the sole judges of the facts, the weight of the
evidence and the credibility of the witnesses and that
nothing the court said was intended to interfere with
their exclusive responsibility to determine the factual
issues in the case. These qualifying instructions, coupled
with the overwhelming evidence of guilt, iead us to
conclude that, as in Holland and McDuffie, the error
here was harmless.
(footnote continued from preceding page)
charge constituted reversible error as to the Count II and III
prosecutions, since we have set aside the convictions on those
counts on other grounds.
32a
{10} The other challenges to the court’s instructions
on Count I are without merit,?? and, as the errors
affecting Counts II and Ill (discussed infra) did not
prejudice the appellants’ trial on Count Il, the
convictions on Count I are affirmed.
IV. THE CONVICTIONS ON COUNT II
In the attack on their convictions under Count II of
the indictment, appellants once again argue that the
charge, as framed, contravened the ex post facto clause.
They also claim prejudicial error in the manner in
which the trial judge received evidence relating to
events which took place prior to the effective date of
the Act. While appellants’ ex post facto arguments and
22The appellants raised a number of objections based on
Georgia law. Their theory was that, as the term “racketeering
activity” is defined in 18 U.S.C. §1961(1 (A) (1970) to include
only those acts “chargeable under State law and punishable by
imprisonment for more than one year,” one must instruct the
jury on the various provisions of state law which would apply if
they were being prosecuted in the Georgia courts for the alleged
acts of racketeering. Thus, they claim that the jury should have
been instructed on the applicable Georgia statute of limitations,
on the Georgia requirement that the testimony of an accomplice
must be corroborated, and on other points of Georgia law. All
these contentions were properly rejected by the district court on
the basis of our decision in United States v. Revel, 493 F.2d 1
(Sth Cir. 1974), where it was said that “the reference to state
law in the federal statute is for the purpose of defining the
conduct prohibited” and is not meant to incorporate the state
statute of limitations or procedural rules. /d. at 3 (emphasis in
original).
ee ee ee
33a
their evidentiary objections were inartfully made at
best. we are convinced that reversible error occurred
and that the convictions must be set aside.
A. The Ex Post Facto Issue
Count Il charged a conspiracy to violate section
1962(c). It alleged that the conspiracy was formed at a
time prior to October 15, 1970, the effective date of
the statute under which the appellants were charged,
and that it contained until the return of the indictment.
In addition to this allegation as to the conspiracy’s
inception, Count II went on to state that an object of
the conspiracy was to commit the acts of racketeering
specified in Count I?* and that the appellants in fact
committed them. A great number of these acts of
racketeering took place between 1966 and October 15,
1970, the date the conspiracy became a federal offense.
Although the appellants moved to dismiss the
indictment, claiming that the entire Act violated the ex
post facto clause, they did not specifically attack Count
If on that ground or question the validity of the
retroactive application of section 1962(d). Their
motions to dismiss were denied. Thereafter, appellants
moved for a bill of particulars to require the
Government to state precisely when the conspiracy
began and when the respective appellants became
members. They also sought a specification of the overt
acts the Government would contend at trial were
committed in effectuating the scheme. After a confer-
?3See note 4. supra.
34a
ence with the court, the Government filed a brief
response, which addressed none of these points. A
formal order was never entered disposing of appellants’
requests for a bill. Thus, the stage was set for a trial on
a conspiracy which began on an unspecified date prior
to the time when such conduct became criminal under
federal law.
The trial commenced with Count II in_ this
procedural posture, and, as disclosed by our summary
of the evidence, the Government presented substantial
proof of the conspiracy’s existence in the 1960's and
the early 1970's. The court then charged the jury as
follows:
What the evidence in the case must establish
beyond a reasonable doubt is that the alleged
conspiracy was knowingly formed and that one or
more of the means or methods described in the
indictment were agreed upon to be used in an
effort to effect or accomplish some object or
purpose of the conspiracy as charged in the
indictment, and that two or more persons,
including one or more of the defendants, were
knowingly members of the conspiracy as charged
in the indictment.
» ~ x
The first thing that you ladies and gentlemen
must find beyond a reasonable doubt from the
evidence is that the conspiracy described in the
indictment was willfully formed and was existing
at or about the time alleged. That’s the first thing
you must find—that the conspiracy as described
was willfully formed at or about the time alleged.
And was existing at or about the time alleged.
Formed and in existence. Record, vol. IX, at 2206,
2208 (emphasis added).
oe
35a
The court went on to instruct the jurors that to obtain
a conviction the Government was required to prove that
at least one of the overt acts alleged in the indictment
had been committed in furtherance of the conspiracy.
The jury was not advised, however, of the effective date
of section 1962(d). Nor was it cautioned that a verdict
of guilty could not be returned unless the Government
demonstrated the existence of a conspiracy of which
the accused was a member after October 15, 1970.74
Thus, the appellants were indicted and tried for
conduct which occurred several years prior to the
enactment of a statute which made it unlawful.
[11-13] Seen in this light, the Count II prosecutions
are constitutionally defective. Technically, however, the
defect is not rooted in the application of the ex post
facto clause. As the Supreme Court recently noted in
Marks v. United States, ___._ US. , 97 S.Ct. 990,
51 L.Ed.2d 260 (1977), that clause itself only prohibits
Congress from enacting legislation retroactively punish-
ing acts which were innocent when done. The principle
embodied in the clause is, however, encompassed in the
concept of due process and is therefore a limitation on
the power of the other two branches of government as
well:
The Ex Post Facto Clause is a limitation upon
the powers of the legislature, see Calder v. Bull, 3
Dall. 385, 1 L.Ed. 648 (1798), and does not of its
—_— —
*4As we have observed in note 20 supra, an instruction
concerning the effective date of section 1962(c) was given in the
court’s charge on Count I. That instruction, however, in no way
cured the error we have found in the instructions applicable to
the two conspiracy counts.
36a
own force apply to the Judicial Branch of
government. Frank v. Mangum, 237 U.S. 309, 344,
35 S.Ct. 582, 593, 59 L.Ed. 969 (1915). But the
principle on which the clause is based—the notion
that persons have a right to fair warning of that
conduct which will give rise to criminal penalties—
is fundamental to our concept of constitutional
liberty. See United States v. Harriss, 347 U.S. 612,
617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954):
Lanzetta v. New Jersey, 306 U.S. 451, 453, 59
S.Ct. 618, 619, 83 L.Ed. 888 (1939). As such,
that right is protected against judicial action by
the Due Process Clause of the Fifth Amendment.
In Bouie v. City of Columbia, 378 U.S. 347, 84
S.Ct. 1697, 12 L.Ed.2Jd 894 (1964), a case
involving the cognate provision of the Fourteenth
Amendment, the Court reversed trespass convic-
tions, finding that they resied on an unexpected
construction of the state trespass statute by the
State Supreme Court:
“{A]n unfcreseeable judicial enlargement of a
criminal statute, applied retroactively, operates
precisely like an ex post facto law such as Art.
1, §10, of the Constitution forbids. ... If a state
legislature is barred by the Ex Post Facto clause
from passing such a law, it must follow that a
State Supreme Court is barred by the Due
Process Clause from achieving precisely the same
result by judicial construction.” /d, at 353-354.
84 S.Ct., at 1703.
a ae 2
L.Ed.2d at 260.
Here the conspiracy provisions of section 1962(d) were
applied retroactively in the indictment and the jury
instructions, thus allowing appellants to be convicted
for “[acts] done before the passing of the law. and
. 97 S.Ct. at 992-993, 5]
37a
which were innocent when done.’?* Consequently,
appellants’ convictions were clearly obtained in viola-
tion of the ex post facto principle embodied in the due
process clause.*®
The Government would nevertheless save these
convictions because of appellants’ failure specifically to
raise this due process issue in their pre-trial attack on
the validity of Count II and, later, when given an
opportunity to object to the court's charge to the jury.
Having failed to object, the appellants are said not to
be entitled to have the issue noticed on appeal absent
“plain error.”?” The Government argues that the
showing of prejudice required to demonstrate plain error
cannot be made in this case because of certain jury
“Boule v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct.
1697, 1702, 12 L.Ed.2d 894 (1964) (emphasis in original).
26 Also instructive is Mullaney v. Wilbur, 421 U.S. 684, 95
S.Ct. 1881. 44 L.Ed.2d 508 (1975). In Mullaney the Supreme
Court unanimously struck down the murder conviction of a
defendant where Maine law had placed on him the burden of
proving by preponderance of the evidence that he had acted in
the heat of passion rather than with premeditation. Relying on
In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
(1970), the Court explained that the state had the burden of
proving every fact necessary to constitute the crime charged
beyond a reasonable doubt. The Maine law thus violated due
process in shifting the burden to the defendant.
Similarly, in this case the Government was allowed to win its
case without proving an essential element of the offense. It was
its duty to prove that a conspiracy existed after the effective
date of the Act. In the manner in which the case reached the
jury, there is no guarantee that such a finding was made. This
does not comport with due process.
27See Fed.R.Crim.P. 52(b).
38a
findings implicit in the guilty verdicts returned on
Count I. Those verdicts were in response to instructions
which required the jury to find at least one
post-October 15, 1970, act of racketeering in order to
convict. It is urged that jury determinations that each
of the convicted appellants engaged in such an act are
equivalent to findings that those appellants were
involved in the Count II conspiracy after the effective
date of the Act. Consequently, the argument continues,
it was harmless error*® to fail to instruct the jury that
an essential element of the section 1962(d) offense is
the existence of a conspiracy after that date.
[14-18] The Government argument overlooks the
record, for appellants’ pre-trial motions claimed that the
indictment violated the ex post facto and due process
clauses. But even if this were not sufficient to present
the constitutional issue to the district court and thus to
preserve it for appeal, we are convinced that we can
notice it under the plain error doctrine.*® Plain error is
that which is “both obvious and substantial.”’ Sykes y.
United States, 373 F.2d 607, 612 (Sth Cir. 1966), cert.
denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138
(1967). See also United States v. Meadows, 523 F.2d
365, 368 n. 5 (Sth Cir. 1975), cert. denied, 424 U.S.
970, 96 S.Ct. 1469, 47 L.Ed.2d 738 (1976). In
8 See id. 52(a).
? Appellants pressed their ex post facto arguments before us
on appeal but did not present the precise grounds on which we
now reverse. We may, of course, sua sponte notice plain error.
see id. 52(b); Silver v. United States, 370 U.S. 717, 82 S.Ct.
1287, 8 L.Ed.2d 798 (1962), and thus we requested supple-
mental briefs which have now been submitted.
ee eee
de tee te ete ee
aernwe
39a
determining whether the error is obvious, we are
reminded that errors of constitutional magnitude will be
noticed more freely under the plain error rule than less
serious errors, see Alexander v. United States, 390 F.2d
101 (Sth Cir. 1968); 3 C. Wright, Federal Practice and
Procedure §856 (1969), and that a closer scrutiny may
also be appropriate “when the failure to preserve the
precise grounds for error is mitigated by [an objection]
on related grounds.” Meadows, 523 F.2d at 368 n. 3.
The error here is certainly of constitutional dimensions.
Moreover, if the due process problem involved in the
retroactive application of section 1962(d) was not
framed by appellants’ pre-trial motions, it was certainly
suggested. Under these circumstances we have no
difficulty in concluding that the defect in the
indictment is sufficiently obvious to meet the plain
error test.
[19] We turn, then, to the question of whether the
error worked substantial prejudice to the rights of
appellants. In appellant Cranford’s case the answer is
clear. He was acquitted of the Count | charge, so a jury
finding that he engaged in a post-October 15, 1970, act
of racketeering as a member of a conspiracy cannot be
inferred from the verdict. Indeed, if an inference is to
be drawn it is that Cranford was not a conspirator after
October 15, 1970, and that his conviction on Count Il
was based on a finding that his complicity in the
protection racket took place prior to the effective date
of the Act.*® It is sophistic to say that substantial
We do not know, of course, what findings the jury may
have made in reaching Cranford’s verdict on the first two counts.
The range of possibilities is practically endless. For example, the
jury could have concluded that he had engaged in the conduct
(continued)
40a
prejudice did not result in Cranford’s case. His Count II
conviction must be set aside.
[20, 21] As for the remaining appellants, the
implication of a Count I| jury finding that each was
involved in an act of racketeering after October 15,
1970, does not, as the Government suggests, end the
inquiry. The Government must concede that the
elements of the offenses charged in Counts | and II
differ sharply. The Count I substantive offense required
proof that acts of racketeering were committed, or
aided and abetted, by the accused: the Count II
conspiracy offense did not. Count II, on the other
hand, required proof of concerted activity in pursuance
of a common object, an element foreign to the Count |
prosecution. To be sure, a finding that the alleged acts
of racketeering had been committed is consistent with
the existence of a conspiracy, but it does not mean that
those convicted actually participated in a conspiracy
after October 15, 1970, to engage in a pattern of
racketeering. For us to draw such a conclusion would
be, in effect, to direct a verdict for the Government on
a material issue of fact. Such an invasion of the
footnote continued from preceding page)
charged in Count I but could not agree unanimously on guilt
beyond a reasonable doubt. Or they could have found that the
Government failed to establish an essential element of that
offense, such as the commission of an act of racketeering after
October 15, 1970. We can say, however, that the Count I verdict
did not establish his involvement in such an act of racketeering.
ee ae eee ene —e
) dea Ae 0 meee
4la
province of the jury cannot be countenanced in a
criminal! case.*?
In sum, the indictment was constitutionally deficient,
and that basic, underlying defect was not cured by the
trial judge in his instructions to the jury. Furthermore,
no inference legitimately may be drawn from the Count
I guilty verdicts to shore up the conspiracy convictions.
Thus, the convictions of all the appellants under Count
Il must be set aside.
B. Evidentiary Errors
[22] Although the convictions under Count II are
reversible because of due process violations, we deem it
appropriate in view of possible retriais to express our
opinion on various alleged evidentiary errors. Through-
out the course of the trial, evidence of pre-October 15,
31See United Broth. of Carpenters & Joiners of America v.
United States, 330 U.S. 395, 408-09, 67 S.Ct. 775, 782-83, 91
L.Ed. 973, 985 (1947) (“For a judge may not direct a verdict of
guilty no matter how conclusive the evidence. There is no way of
knowing here whether the jury’s verdict was based on facts
within the condemned instructions...A failure to charge
correctly is not harmless, since the verdict might have resulted
from the incorrect instruction.”); United States v. Ragsdale, 438
F.2d 21, 27 (Sth Cir.), cert. denied, 403 U.S. 919, 91 S.Ct.
2231, 29 L.Ed.2d 696 (1971) (“This Circuit is firmly committed
to what appears to be the universal rule, that no matter how
conclusive the evidence, a court may not direct a verdict of
guilty in whole or in part....Any such instruction would
amount to plain error which would be noticed, even though not
assigned.”). See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct.
1881, 44 L.Ed.2d 508 (1975).
42a
1970, conduct and conversations was admitted over
objection.** Many of the conversations were hearsay
declarations. We agree with appellants that the district
court’s handling of much of this proffered evidence was
prejudicially improper as to their Count H convictions.
[23] We have previously explained in our discussion
of the Count | convictions that the Government is
permitted under section 1962(c) to prove acts of
racketeering taking place before the section’s effective
date so long as a post-enactment act of racketeering is
also proved beyond a reasonable doubt. We have also
noted, however, that the elements of the substantive
offense of Count I and the conspiraterial offense of
Count Il differ dramatically in both practical and
constitutional dimensions. Thus, while it was proper to
allow proof of pre-enactment conduct into evidence in
support of the Count | offense** contemporaneous
22 1t is true that objections were not made by the appellants
every time such evidence was introduced. Strenuous objections
were lodged, however, early in trial. In light of the district
court’s handling of the motions to dismiss the indictment and for
a bill of particulars, and in light of its treatment of these initial
objections by postponing his rulings on admissibility and the
deliverance of limiting instructions until later, see note 40 infra
and accompanying text, we deem the initial objections sufficient
to preserve the error on appeal.
See United States v. Annoreno, 460 F.2d 1303, 1307 (7th
Cir.), cert. denied, 409 U.S. 852, 93 St.Ct. 64, 34 L.Ed.2d 95
(1972); United States v. Hickey, 360 F.2d 127, 140 (7th Cir.),
cert. denied, 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed.2d 210
(1966); Parr v. United States, 255 F.2d 86 (Sth Cir.), cert.
denied, 358 U.S. 824, 79 S.Ct. 40, 3 L.Ed.2d 64 (1958). See
generally 3 C. Torcia, Wharton’s Criminal Evidence §642 (13th
ed. 1973).
43a
limiting instructions were required to guide the jury’s
reception of the evidence as to the conspiracy counts.**
[24-26] The trial court’s handling of the evidence
was most notably deficient in regards to the hearsay
declarations (occurring both before and after the
effective date of the Act) which the Government argues
were admissible under the co-conspirator exception to
the hearsay rule.** There is no doubt that the
co-conspirator exception can be appropriately utilized
*The need for limiting instructions was even more manifest
with respect to the Count III prosecution, where the object of
the conspiracy was narrower in scope than the object of the
Count II conspiracy. See Part V infra.
The complexity of the evidentiary problems presented by this
indictment would have made Counts II and III likely candidates
for severance. However, motions to sever these counts were never
presented to the trial court, and we have not been urged on
appeal to find plain error in the trial court’s failure to sever them
on its own initiative.
Sin addition to declarations of co-conspirators, the Govern-
ment introduced evidence, over defense objection, of individual
conduct of appellants and other participants in the protection
racket engaged in long before the effective date of the Act. In
the Count II prosecution the evidence was clearly admissible as
against the appellant (or appellants) involved to demonstrate, for
example, criminal intent or to explain modus operandi, but it
was not admissible against appellants not involved in the
conduct. In several instances a limiting instruction should have
been given to insure that the jury would not consider the
evidence in determining the guilt or innocence of those
appellants against whom the evidence was not admissible. In the
Count III prosecution, the need for limiting instructions was even
greater. See note 34 supra & Part V infra.
In this opinion for convenience sake we will refer to the
“co-conspirator exception to the hearsay rule.” Under the
(continued)
44a
in cases of this type.*° For a co-conspirator’s
out-of-court declaration to be used as evidence against a
defendant, however, at some point during the trial the
Government must establish by independent evidence
that the defendant was a member of the conspiracy and
that the declaration was made in the course of and in
furtherance of the conspiracy.*’
{[27, 28] Moreover, as this case was tried prior to
the effective date of the new Federal Rules of
Evidence, it was for the jury to decide whether these
(footnote continued from preceding page)
Federal Rules of Evidence, of course, there is no such exception
because a statement by a co-conspirator of a party during the
course and in furtherance of the conspiracy is by definition not a
hearsay statement. See Fed.R.Evid. 801(d)(2)E). The present
case was tried, however, before the Federal Rules came into
effect, and at that time a statement such as that defined in Rule
801(d\(2)(E) was often considered to be hearsay but was
admissible under “a well-recognized exception to the hearsay
rule.” See Anderson v. United States, 417 U.S. 211, 218, 94
S.Ct. 2253, 2259, 41 L.Ed.2d 20, 28 (1974) (exception referred
to as the “hearsay-conspiracy exception”).
See, e.g., United States v. Marchisio, 344 F.2d 653, 668 (2d
Cir. 1965); United States v. Dennis, 183 F.2d 201, 231 (2d Cir.
1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).
37United States v. Nelson, 498 F.2d 1247, 1249 (Sth Cir.
1974); United States v. Jimenez, 496 F.2d 288, 291 (Sth Cir.
1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d
660 (1975); United States v. Apollo, 476 F.2d 156, 162-163
(Sth Cir. 1973). See generally 3 C. Torcia, Wharton’s Criminal
Evidence §642 (13th ed. 1973).
- ee a
ON et ee etree
ote, teh: tes nen
45a
conditions had been met.** In view of the difficulty of
this task placed on laymen, this circuit has required a
cautionary instruction be given to the jury when
evidence is proffered under the co-conspirator excep-
tion. In Apollo, for example, we noted that there was
a minimum obligation on the trial judge in a
conspiracy case in which extrajudicial statements
of alleged co-conspirators are proffered to give a
cautionary instruction on the limited uses of
hearsay testimony, explaining clearly to the jury
the requirement that the conspiracy itself and each
detendant’s participation in it must be established
by independent non-hearsay evidence which must
be given either prior to the introduction of any
evidence or immediately upon the first instance of
such hearsay testimony. 476 F.2d at 163
(emphasis added).
Under this approach, the failure to give such a
cautionary instruction at the time the hearsay is first
proffered is error, an error which instruction at the end
*The Federal Rules of Evidence became effective on July 1,
1975, a full month after the conclusion of the trial in this case.
It should be noted that the new Rule 104(a) vests the court with
the exclusive responsibility of resolving questions of admissibility,
except as otherwise provided by Rule 104(b). We pretermit the
question of the effect of Rule 104 on our decision in United
States v. Apollo, 476 F.2d 156 (Sth Cir. 1973). See generally
United States v. Petrozziello, 548 F.2d 20 (ist Cir. 1977).
46a
of trial does not necessarily cure.*? Jd. at 163-164. See
also United States v. Jackson, 536 F.2d 628 (Sth Cir.
1976): United States v. Mendez, 496 F.2d 128 (Sth Cir.
1974).
Measured by the Apollo standards, the court below
committed error for it failed to give a cautionary
instruction when hearsay evidence was proffered under
the co-conspirator exception. Indeed, when an objection
was first raised to such evidence, the court told the
jurors that it would instruct them at the end of the
trial as to the use of such testimony and that until that
time they should just “remember everything.”*°? This
was the court’s consistent approach to the problem of
co-conspirator hearsay testimony, and consequently no
cautionary or limiting instruction was given until the
final charge. In the context of this case, such guidance
The instruction was crucial under the Apollo approach
because the jury was in effect making the admissibility
determination: that is, it was for the jurors to decide by
considering the evidence aliunde whether the defendant was a
member of the conspiracy, and, if they concluded he was, then
they could consider subsequent declarations by his co-con-
spirators which were made out of his presence but in the course
and in furtherance of the conspiracy. See note 37 supra.
“The jury was instructed:
Ladies and gentlemen, the term “conspiracy” is an
involved legal terminology, and the subject matter that
evidence is involved in. The Court, when we get to the end
of the case is going to instruct you ladies and gentlemen on
how you can use whatever evidence comes into Court. So
just bear that in mind, and you remember everything that
you do hear and then I will tell you about it when we get
to that point. But presently she may testify to it. Record,
vol. II, at 269.
OA A te ae at ble we me
ee
47a
was too little and too late.*' It is clear that the
evidentiary errors were not harmless, but prejudicial, in
regard to the Count II convictions.*?
V. THE CONVICTIONS ON COUNT III
[29, 30} The errors which require us to reverse the
Count II convictions pervaded the Count III prosecu-
tion under 18 U.S.C. §1911 (1970) as well.4? Once
*'The charge only recited the basic law that the defendant
had to be shown to be a member of the conspiracy by
independent evidence and that the declaration be made in the
course of and in furtherance of the conspiracy. As for
non-hearsay testimony offered for a limited purpose, no
instruction of any kind was given either during the trial, as we
have observed, or in the final charge.
**We should point out here that we have carefully examined
each out-of-court statement offered in proof of the Count |
offense. Given the broader basis for admissibility afforded by the
allegations of that count as compared with the conspiracy
counts, we are satisfied that each statement offered for the truth
of its contents properly fell within a recognized exception to the
hearsay rule not requiring the type of limiting instruction
mandated by the co-conspirator exception. In addition, these
statements, as well as those offered not in proof of their
contents, were clearly admissible to establish other facts.
*3In addition to the impermissible retrospective prosecution of
the section 1511 offense, which required reversal of appellants’
convictions, additional error was committed in the court below
which, we believe, warrants some comment at this time in order
that its possible recurrence may be avoided in the event
appellants are retried on the Count III charges. This additional
error relates to the manner in which the Count III sentences
were fashioned by the trial court. See note 2 supra. The
(continued)
48a
again the accused were cited for membership in a
conspiracy in violation of federal law both before and
after such conduct was proscribed by Congress. Count
III charged that at some time prior to the effective date
(footnote continued from preceding page)
maximum sentence provided by section 1511 is five years
imprisonment or a $20,000 fine, or both. Each appellant, except
Newsome, who was not charged in Count III, received the same
disposition—the imposition of sentence was withheld and the
appellant was placed on probation for a period of five years. See
18 U.S.C. §3651 (Supp. II 1972). The district judge had the
option, of course, of imposing these sentences either concur-
rently with those handed down on the other counts or
consecutively. He apparently attempted to do both. First, he
ordered the probationary term to begin immediately and to
continue until the imprisonment called for by the Count I and li
sentences commenced. Then he provided that upon completion
of the prison sentences the appellant would again be placed
under the court’s supervision for whatever portion of the five
year probationary term remained. Under this provision, an
appellant, after completing the incarceration and subsequent
parole contemplated by the Count I-Il sentencing, could be
subjected to an additional term of imprisonment if his probation
were revoked.
We can find nothing in the federal penal statutes to criminal
rules or the case law which would authorize such bifurcation of a
probated sentence. We are not persuaded that such authorization
is implicit in the power of a district court to impose sentences
concurrently or consecutively. We, of course, recognize that a
sentencing judge is empowered by Federal Rule of Criminal
Procedure 38(aX4) to place a convicted defendant under active
probation supervision while admitted to bail pending appeal,
which is evidently what the district judge sought to accomplish
in this case. But the rule clearly does not authorize the
bifurcated sentence imposed here. We thus conclude that the
Count III sentences are illegal.
ee ee ee
8 ee ie ali NAO A tls NE LO tl eh em
49a
of section i1511—October 15, 1970—appellants entered
into a conspiracy to obstruct the enforcement of state
anti-lottery laws and that they continued their
conspiracy until March 25, 1975, when the indictment
was returned. !n addition to this reference to
pre-enactment activity, Count III set forth several overt
acts which had their inception prior to October 15,
1970. The principle one described William Prestis
Tucker’s lottery operation, the illegal gambling business
which appellants allegedly sought to protect. Other
overt acts alleged frequent bribery payments from
Tucker to appellants Seymour, Brown and Cranford to
insure the continued operation of the lottery.
As we indicated in our discussion of Count Il,
appellants motions to dismiss the indictment were
denied. Furthermore. the Government was not required
to furnish a bill of particulars fixing the beginning date
of the conspiracy and the period of each member's
involvement. Consequently, in proving its case the
Governinent was given wide latitude, and a considerable
volume of evidence demonstrating the _ individual
involvement of various participants in the protection
scheme during the 1960's was received. Much of this
evidence, especially the testimony concerning the
protection of prostitution and moonshining activities,
was entirely irrelevant to the charge framed in Count
Ill of the indictment which dealt only with Tucker's
numbers operation, but it was nevertheless received over
objection and without limiting instructions.** The error
was carried forward into the judge’s final charge to the
jury, where, as with the instructions on Count II, the
4See note 32 supra.
50a
court failed to advise the jury of the critical importance
that should be attached to the date of October 15,
1970, during their deliberations. Rather, the jury was
merely instructed that “the conspiracy as charged in the
indictment’ must be found to have existed in fact “at
or about the time alleged” and that one overt act must
have occurred. The Court thus declined once again an
opportunity at the conclusion of the trial to avoid the
retroactive application of a federal criminal statute and
permitted the jury to posit guilt solely on the basis of
conduct that did not constitute a federal crime when it
was done. As a result, the Count III convictions cannot
stand.**
VI. TRIAL MANAGEMENT ISSUES
Appellants have also raised a number of issues
relating to a manner in which the trial was conducted.
While these issues are largely without merit, we think it
is appropriate to address two of them briefly.
A. The Witness Interview Procedures
The Government had a large number of witnesses in
this case. Some of these were individuals who in the
recent past had been receiving protection from the
“SMany of the evidentiary errors discussed in regards to the
Count Il convictions in Part IV B of this opinion were equally
prejudicial as to the Count III convictions and serve as further
grounds for reversal.
DBA ee a Ny
Sla
appellant officers. and some of them had expressed fear
of the appellants. After a lengthy conference in
chambers, the court set up a procedure whereby, if the
attorneys for the appellants wished to interview any of
these witnesses. they could do so only by calling a
deputy clerk, who would contact the witness and advise
him that he had the mght to grant or refuse the
interview. If the witness decided to grant an interview,
it would be conducted in the presence of the deputy
clerk. The court indicated that this procedure was only
an experiment and was subject to revision on request.
While defense counsel voiced doubts about how
practical these procedures were, they never requested
any changes in them. Appellants now claim that the
witness interview procedures denied them a fair trial.
{31-33] We reject this contention. As was recently
noted by the Sixth Circuit, “{a] defendant is entitled
to have access to any prospective witness although such
a right of access may not lead to an actual interview.”
United States vy. Scott, 518 F.2d 261, 268 (6th Cir.
1975). The limitation on the right of access is that “‘a
witness may refuse to be interviewed or dictate the
circumstances under which he will submit to an
interview.” United States v. Drvden, 423 F.2d 1178.
1177 n. 6 (Sth Cir.) cert. denied, 398 U.S. 950, 90
S.Ct. 1869. 26 L.Ed.2d 290 (1970). Here the court
simply established a procedure which preserved both
the appellants’ right of access and the witness's right to
grant or refuse the interview. Moreover. the judge made
it clear that the procedures were only an experiment.
and defense counsel were invited to inform him if the
procedures were unmanageable. As appellants failed to
come forward with specific suggestions or objections to
52a
the procedures, and as the procedures did not infringe
appellants’ right of access, there was no error.
B. The Mid-Trial Removal of a Juror
(34] At the end of the first week of trial, the court
discussed with counsel in chambers the possibility of
excusing a female juror who was suffering from nausea
and appeared inattentive and indicated that it would
rule on the matter following the weekend recess. On
Monday morning the court advised counsel that on
Friday evening the marshal’s office had received a
complaint concerning five coffee cups which were
missing from the restaurant where the sequestered
jurors had dined. The court further advised counsel that
it had sua sponte ordered the Chief Deputy Marshal to
investigate the matter by talking with the other
deputies who had personal knowledge of the situation.
On the basis of this investigation, the court was able to
determine that the same juror who had been sick during
the first week had taken the five mugs. It was also
brought to the court’s attention that the juror had been
receiving a male juror in her room during the evenings
and had been using valium tablets.
On the basis of all this information, the judge advised
counsel that he had ordered the juror removed. He also
advised counsel that the deputy marshals had retrieved
the missing mugs from the removed juror and from
another juror who had been given two of the mugs.
Appellants objected to the juror’s removal but did not
request that other jurors be excused. They now claim
that it was error for the court to have taken the action
53a
it did over the weekend without consulting the parties
and that the court should have removed all jurors
involved in the misconduct.
While the better practice would have been to have
consulted the parties before launching the weekend
investigation, we find no error. This is not a case
involving a “private communication, contact, or
tampering ... with a juror during a trial about the matter
pending before the jury.” Remmer vy. United States.
347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654
(1954). Nor is this a case where the court secretly
received or replied to a communication from the jury.
See, e.g., Rogers v. United States, 422 U.S. 35, 95 S.Ct.
2091, 45 L.Ed.2d 1 (1975): United States v. McDuffie.
542 F.2d 236 (Sth Cir. 1976). The court's investigation
of the matter was limited to questioning the deputy
marshals who had knowledge of the situation, and
thereafter the court simply exercised its well-recognized
discretion when it discharged the juror and substituted
an alternate. See Fed.R.Crim.P. 24(c): United States y.
Franks, 511 F.2d 25, 37 (6th Cir. 1975); United States
vy. Floyd, 496 F.2d 982, 990 (2d Cir.). cert. denied
Miller v. United States, 41° U.S. 1069, 95 S.Ct. 654.
42 L.Ed.2d 664 (1974): United States v. Cameron, 464
F.2d 333, 335 (3d Cir. 1972). The appellants were fully
informed of the court’s actions, and their only
objection was to the female juror being removed at all.
Under these circumstances, there was no error.
S4a
Vil. CONCLUSION
In this appeal we have reviewed the convictions of
former officers of the Macon, Georgia, police depart-
ment under the Organized Crime Control Act of 1970.
After initially determining that they were engaged in an
enterprise comprehended by the Act, we affirmed their
convictions for substantive offenses. We were compelled
to reverse their convictions under the conspiracy
counts. however, because of constitutional, procedural
and evidentiary infirmities. Consequently, the con-
victions under Count | are affirmed, but those under
Counts II and III are reversed. This cause is remanded
to the district court for proceedings not inconsistent
with this opinion.
AFFIRMED IN PART. REVERSED IN PART AND
REMANDED.
5Sa
CTE:kw
75-2482
July 28, 1977
Mr. Edward W. Wadsworth
Clerk, U.S. Court of Appeals
for the Fifth Circuit
600 Camp Street
New Orleans, Louisiana 70130
Re: U.S. v. Lonnie M. Brown,
et al., No. 75-2482
Dear Sir:
We have been notified that on July 25, 1977, the
Solicitor General decided not to authorize the filing of
a petition for rehearing in the above-referenced case.
For that reason, we are withdrawing our motion for
extension of time in which to file a petition for
rehearing and suggestion for rehearing en banc.
Yours very truly,
/s/ Charles T. Erion
CHARLES T. ERION
United States Attorney
cc: Frank K. Martin
Harry F. Thompson
S. Phillip Brown
Benjamin M. Garland
EXHIBIT “B”
S6a
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
OFFICE OF THE CLERK
EDWARD W. WADSWORTH TEL $04—589-6514
CLERK 600 CAMP STREET
NEW ORLEANS, LA. 70130
August 24, 1977
TO ALL PARTIES LISTED BELOW:
NO. 75-2482 — U.S.A. v. LONNIE M. BROWN,
ROBERT L. NEWSOME, JAMES B. FINNEY,
JULIAN E. SEYMOUR, JR... and BENJAMIN
CLYDE CRANFORD. JR.
Dear Counsel:
This is to advise that an order has this day been
entered denying the petition( ) for rehearing.** and no
member of the panel nor Judge in regular active service
on the Court having requested that the Court be polled
on rehearing en banc (Rule 35, Federal Rules of
Appellate Procedure; Local Fifth Circuit Rule 12) the
petition( ) for rehearing en banc has also been denied.
57a
See Rule 41. Federal Rules of Appellate Procedure
for issuance and stay of the mandate.
** on
Very truly yours,
EDWARD W. WADSWORTH, Clerk
By s Brenda M. Hauck
Deputy Clerk
behalf of all appellants, except Benjamin Clyde
Cranford,
Ce:
Mr
Mr
Mr
Mr
Mr
Mr
Mr
_S. Phillip Brown
. Frank K. Martin
. Benjamin M. Garland
. Harry F. Thompson
.D. L. Rampey, Jr.
. Ronald T. Knight
. O. Hale Almand, Jr.
EXHIBIT “C”’
58a
CERTIFICATE OF SERVICE
I, Frank K. Martin, do hereby certify that I have
served each of the following parties to this proceeding
with a complete copy of this Petition for Writ of
Certiorari to the United States Court of Appeals for the
Fifth Circuit by placing the same in the United States
mail, correctly addressed with sufficient postage affixed
thereto, as well as notifying each of the below listed
interested parties by telegraphic dispatch on this 15th
day of September, 1977.
MARTIN, KILPATRICK &
DAVIDSON, P.C.
BY: /s/ Frank K. Martin
Frank K. Martin, Counsel for
Appellant Julian E. Seymour, Jr.
P.O. Box 2828
828 Broadway
Columbus, Georgia 31902
(404) 324-7371
COPIES:
1.Mr. Benjamin M. Garland, Counsel for Robert L.
Newsome
Post Office Box 5088
Macon. Georgia 31208
.Mr. Harry Thompson, Counsel for Benjamin Clyde
Cranford
Room 103, American Federal Building
Macon, Georgia 31201
to
ss cull ts inn etn ior ili ash pa
59a
.Mr. S. Phillip Brown, Counsel for Lonnie Brown &
James B. Finney
Room 614, American Federal Building
Macon, Georgia 31201
.Mr. Charles Erion. Ist Assistant United States
Attorney *
Office of United States Attorney
Post Office Box “U*, Old Post Office Building
Macon, Georgia 31208
. Hon. Wade H. McCree, Jr.. Solicitor Genefal
Department of Justice
Washington, D.C. 20530
United States Attorney, Hon. R. Lee Rampey, was
trial counsel and appellate counsel for Appellant
James B. Finney and Mr. Rampey is not taking part
in this appeal and was not served for that reason by
counsel for Appellant Julian E. Seymour. Jr.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.