Petition — HAWKINS v. UNITED STATES (Nos. 78-34, 78-7)
Supreme Court brief1978
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IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1977
No. 78-34
RECEA HOWELL HAWKINS, and
JOHN CLAYBURN HAWKINS, JR.,
Petitioners,
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
OSCAR B. GOODMAN, ESQ.
GOODMAN, OSHINS, BROWN &
SINGER, CHARTERED
1600 Valley Bank Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Telephone: (702) 384-5563
\ Attorney for Petitioners
ES TT A a ST
Washington, D.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e /202) 393.0625
(i)
TABLE OF CONTENTS
Page
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QUESTIONS PRESENTED FOR REVIEW ........... 2
STATUTORY PROVISIONS INVOLVED ............. 2.
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Daeumeeeres OF Eee PACTS .......... ccc cc cccees 6
REASONS FOR GRANTING THE WRIT ........... 12
I. THE DISTRICT COURT AND COURT
OF APPEALS ERRED IN HOLDING
THAT 18 U.S.C. §1961 et seq (RICO)
AUTHORIZES A JOINT TRIAL OF DE-
FENDANTS, WHO, UNDER THE EVI-
DENCE PRESENTED, COULD NOT
HAVE BEEN JOINTLY TRIED UNDER
THE HOLDING OF KOTTEAKOS V.
UNITED STATES, 328 U.S. 750 (1946)
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IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1977
No.
RECEA HOWELL HAWKINS, and
JOHN CLAYBURN HAWKINS, JR.,
Petitioners,
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
The Petitioners, RECEA HOWELL HAWKINS, and
JOHN CLAYBURN HAWKINS, JR., respectfully pray
that a Writ of Certiorari issue to review the order of the
United States Court of Appeals for the Fifth Circuit entered
in this proceeding on April 21, 1978, and the order of June
2, 1978 denying the Petition for Rehearing and rejecting the
Suggestion for a Rehearing En Banc.
OPINION BELOW
The order of the United States Court of Appeals for the
Fifth Circuit was filed on or about April 21, 1978, and is
2
reported at 571 F.2d 880. A copy of the opinion is attached
hereto as Appendix “A”. On June 2, 1978, the United
States Court of Appeals for the Fifth Circuit additionally
denied Petitioners’ Motion for Rehearing and rejected
Petitioners’ Suggestion for a Rehearing En Banc. A copy of
= order of June 2, 1978 is attached hereto as Appendix
JURISDICTION
This Court’s jurisdiction is invoked under 28 U
§1254(1). oe
QUESTION PRESENTED FOR REVIEW
l, Whether or not 18 U.S.C. §1961 et seq. (RICO)
authorizes a joint trial of defendants, who, under the
evidence presented, could not have been jointly tried under
the hoiding of Kotteakos v. United States, 328 U.S. 750
(1946) and its progeny.
STATUTORY PROVISIONS INVOLVED
Title 18 U.S.C. §1961, 1962 and 1963 are directly
involved herein. The text of these Statutes are attached
hereto as Appendix “C’”’,
— a
3
STATEMENT OF THE CASE
—Nature of the Case and Its Disposition—
On June 9, 1976, an eight-count indictment was filed in
the District Court of the United States for the Middle
District of Georgia, Macon Division. The Petitioners -
JOHN CLAYBURN HAWKINS, JR. a/k/a J.C. HAW-
KINS [hereinafter referred to as “J.C. HAWKINS” was
charged in seven counts, alleging various violations which
the Government alleged constituted racketeering activities.
Count One alleged that from December 3, 1970, to the
date of the indictment’s return, Petitioner J.C. HAWKINS
conspired with five other named defendants and thirty-five
unindicted co-conspirators to conduct and participate,
directly and indirectly, in the conduct of the affairs of an
enterprise through a pattern of racketeering activity. The
conduct attributed to Petitioner J.C. HAWKINS and
encompassed in the conspiratorial activities alleged in
Count One included, among the twenty-two overt acts,
arson activities (with co-defendants RECEA HOWELL
HAWKINS and WILLIAM MARION FOSTER), con-
cealment of stolen property (with co-defendants RECEA
HAWKINS and FOSTER), possession: of items stolen
from interstate shipments, murder of a witness in a case
involving the theft of stolen property, narcotics trafficking,
obstruction of justice (with co-defendant JAMES AL-
FORD ELLIOTT, JR.), counterfeiting (with an unindicted
co-conspirator) distribution of counterfeit titles (with co-
defendants ROBERT ERVIN DELPH, JR. and FRANK
TAYLOR), sale of stolen meat, possession of stolen meat
and dairy products (with co-defendant FOSTER), finan-
cing the purchase of controlled substances (with an
unindicted co-conspirator), possession of various drugs,
em eee ee.
4
concealment of stolen shirts (with co-defendants RECEA
HAWKINS and FOSTER) and sale of dangerous drugs,
all in alleged violation of Title 18 U.S.C. §1962(d).
Count Two alleged the substantive violation of racketeer-
ing activity naming J.C. HAWKINS and RECEA
HAWKINS as being the persons associated with the
criminal enterprise, and charged the offenses of arson,
under the laws of the State of Georgia, sale of dangerous
drugs and murder (with specific reference to J.C. HAW-
KINS as the “murderer’’) as constituting the pattern of
activity in violation of Title 18 U.S.C. §1962(c), 1963,
and 2.
Count Three charged J.C. HAWKINS (and an unin-
dicted co-conspirator) with possession of stolen meat in
violation of Title 18 U.S.C, §659 and 2; Count Four
charged J.C. HAWKINS and Defendant ELLIOTT with
obstruction of justice; Count Five charged J.C. HAW-
KINS, Defendant FOSTER (and “‘others’’) with posses-
sion of stolen meat and dairy products, in violation of Title
18 U.S.C. §659 and 2; Count Six charged J.C.
HAWKINS with Defendants RECEA HAWKINS and
FOSTER (and “‘others’’) with possession of stolen shirts in
violation of Title 18 U.S.C. §659 and 2; Count Seven
charged Defendant ELLIOTT with obstruction of justice;
and Count Eight charged J.C. HAWKINS with receipt and
disposal of a counterfeit certificate of title of the State of
Georgia in violation of Title 18 U.S.C. §2315.
On June 18, 1976, J.C. HAWKINS was arraigned and
he entered his plea of not guilty. On July 3, 1976, a
superseding indictment was returned which corrected
certain misreferences contained in the original indictment,
leaving the counts and allegations in a substantially
identical! posture of the original indictment. J.C. HAW-
eee See
5
KINS repeated his plea of not guilty to the superseding
indictment.
On August 27, 1976, the jury returned a verdict of guilty
as to J.C. HAWKINS on six of the seven counts of which
he stood indicted, having found a verdict of not guilty as to
Count Four (the Defendant ELLIOTT, who was also
charged in Count Four, the obstruction of justice charge,
had been granted a judgment of acquittal upon motion at the
conclusion of the Government’s case, a rulig which the trial
judge would not afford to J.C. HAWKINS.
The Petitioner, RECEA HOWELL HAWKINS [here-
inafter referred to as “RECEA HAWKINS” | was charged
in three counts, alleging various violations which the
Government stated constituted racketeering activities.
Count One alleged that from December 3, 1970, to the date
of the indictment’s return, Petitioner RECEA HAWKINS
conspired with his brother, J.C. HAWKINS, with four
other named Defendants, and 35 unindicted co-conspira-
tors to conduct and participate, directly and indirectly, in
the conduct of the affairs of an enterprise through a pattern
of racketeering activity. The conduct attributed to RECEA
HAWKINS and encompassed in the conspiratorial activi-
ties alleged in Count One included, among the 22 overt
acts: Arson activities (with co-defendants J.C. HAWKINS
and WILLIAM MARION FOSTER); concealment of
stolen property (with co-defendants J.C. HAWKINS and
WILLIAM MARION FOSTER); and possession and sale
of dangerous drugs, together with the concealment of stolen
shirts (with co-defendants J.C. HAWKINS and WIL-
LIAM MARION FOSTER), all in violation of Title 18
U.S.C. §1962(d).
Count Two alleged the substantive violation of racketeer-
ing activity naming RECEA HAWKINS and his brother,
6
J.C. HAWKINS, as being the persons associated with the
criminal enterprise, and charged the offenses under the laws
of the State of Georgia, as they pertained to RECEA
HAWKINS of arson, and sale of a dangerous drug,
together with the jederal offense of possession of stolen
property, to-wit, shirts, knowing the same to have been
stolen, a federal violation. It was alleged that these
activities constituted a pattern of crime in violation of Title
18 U.S.C. §1962(c), 1963 and 2.
Count Six charged RECEA HAWKINS with posses-
sion of stolen shirts in violation of Title 18 U.S.C. §659
and 2.
At the conclusion of evidence, argument and instruction,
on August 27, 1976, the jury returned a verdict of guilty as
to RECEA HAWKINS on the three counts of which he
stood charged.
On appeal, the United States Court of Appeals for the
Fifth Circuit affirmed Petitioners’ convictions, stating that
the case presents “serious and novel legal questions”. In
affirming the convictions herein relevant, the Court held
that the RICO Statute has ‘displaced many of the legal
precepts traditionally applied to concerted criminal activity
and held that the theory of Kotteakos v. United States, 328
U.S. 750 (1946) does not apply under the RICO Statutes.
STATEMENT OF THE FACTS
The decision of the United States Court of Appeals for
the Fifth Circuit, Appendix “A”’, carefully and laboriously
recites the facts involved in this matter. Succinctly stated,
the facts produced at trial were as follows.
To describe the Government's presentation of evidence
7
in this case as demonstrating a “shotgun” approach would
be a woeful understatement. No attempt was made to prove
an express agreement to engage in the far-flung criminal
activity alleged. No attempt was made to show any formal
association among the defendants which might indicate the
existence of an “enterprise” (18 U.S.C. §1962). The.
Government’s approach instead was to merely allege the
existence of such an enterprise and such an agreement and
to then overwhelm the defendants and the jury with literally
dozens of instances of criminal conduct by various
defendants and “‘unindicted co-conspirators” during the
previous 5% years. Construing the evidence most strongly
in favor of the Government, the following list of criminal
transactions was indicated by the evidence. The list is set
out in an attempt to organize the mass of testimony
provided so as to distinguish among the various conspira-
cies which Petitioners contend were shown by the evidence.
Weight and credibility of the evidence is ignored:
1. Arson: Witness GUNNELLS testified under the co-
conspirator exception to the hearsay rule that he was told
by Defendant WILLIAM FOSTER that FOSTER had
employed J.C. and RECEA HAWKINS to burn a nursing
home in which FOSTER had an interest. The fire occurred
on December 3, 1970.
2. Titles: In 1971, J.C. HAWKINS arranged with
unindicted co-conspirator MARVIN FARR to produce
counterfeit certificates of title. Titles from this source were
traced to Defendants ROBERT DELPH and JOHN
TAYLOR, through unindicted co-conspirators GREEN,
BOYD and JACKSON, and to unindicted co-conspirators,
BRELAND, CHAPMEN, CHESTER, ESTES, and
HOGG. The titles are pertinent to four separate and
distinct facets:
8
a. Acquisition of titles by J.C. HAWKINS from
FARR.
b. Use of titles by J.C. HAWKINS in Macon in connec-
tion with sale of stolen automobiles.
c. Use of titles by BRELAND and ESTES in a car
stealing spree.
d. Distribution of titles in the Atlanta area by DELPH
and TAYLOR to car thieves GREEN, BOYD and
JACKSON.
Three separate conspiracies are involved here if distinc-
tion is made between the conspirator relationship and that
of buyer and seller. At least one title shown to be from a
different source was received by JACKSON from either
DELPH or TAYLOR.
3. Possession of property stolen from interstate ship-
ments.
a. Hormel meat shipment (boxed beef) in April, 1972.
Meat stolen in Cobb County, Georgia, was recovered at
various locations in Macon, Georgia and traced back to
J.C. HAWKINS. The evidence in this regard concerned
the possession and distribution of the stolen meat by J.C.
HAWKINS and unindicted co-conspirators FLANDERS,
COLLIER and HOGG. Evidence further pointed to
DELPH, in that he was employed as a driver for the owner
of the Hormel meat truck some 6-8 months prior to the theft
and that he, along with other named persons was present
four or five hours prior to the theft at the busy service
station at which the truck was parked.
b. Swift Shipment—(Swinging beef, pork, cheese and
butter) in October, 1973.
This shipment was stolen by unindicted co-conspirators
RAINEY and BURNETT and sold to J.C. HAWKINS.
Efforts to dispose of the meat were attributed to Defendant
FOSTER and unindicted co-conspirators GUNNELLS,
9
ESTES, AVERETT and MOOSE. GUNNELLS testified
that FOSTER tried to gett GUNNELS to store the meat in
his nursing homes. Then J.C. HAWKINS, ESTES and
GUNNELLS took the truck to Perry, Georgia, where it
was eventually loaded into two other trucks, one of which
was driven to a store in Twiggs County, Georgia. owned by
FOSTER. Finally, MOOSE and AVERETT sold what
remained unspoiled in Charlotte, North Carolina.
c. Career Club Shirts Shipment in November, 1973.
This shipment was stolen in Macon, Georgia, and taken
to Atlanta where the truck was seen in a warehouse
belonging to Defendant FOSTER. J.C. and RECEA
HAWKINS were connected by the evidence to the ware-
housed truck and FOSTER and RECEA HAWKINS
were shown to have been in possession of some of the shirts
later in Macon. A large number of the shirts were disposed
of in North Carolina by AVERETT and MOOSE.
4. Obstruction of Justice—RUDOLPH FLANDERS
was tried for possession of the stolen Hormel meat, in May,
1973. Testimony was introduced suggesting that J.C.
HAWKINS arranged with Defendant JAMES ELLIOTT
to “hang” the FLANDERS Jury. (The Court directed a
verdict as to ELLIOTT on that charge and J.C.
HAWKINS was acquitted by the Jury, supra).
b. Fuchs Testimony. Unindicted co-conspirators
FUCHS and ELLIOTT discussed the source of some meat
which had come into the possession of FUCHS from either
J.C. HAWKINS or ELLIOTT. The record is unclear as to
whether the meat was Swifts, Hormel or some other kind.
(ELLIOTT was acquitted of this charge).
c. Ellison Affidavit. ELLISON was a potential witness
against J.C. HAWKINS with reference to a theft of a front-
end loader and truck in the Atlanta area. The Government
10
theorized that J.C. HAWKINS together with two unknown
persons apparently obtained a false affidavit from
ELLISON.
d. Plan to get Flanders. GREEN testified that J.C.
HAWKINS, inquired about the possibility of finding
someone to “take care of’ the witness FLANDERS in a
police bribery trial.
5. Murder of James Reeves. The Government con-
tended that REEVES was murdered by J.C. and/or
RECEA HAWKINS because he was an informant and
potential witness in the same case as ELLISON. In 1973,
J.C. HAWKINS allegedly stole a truck loaded with a piece
of heavy equipment. RECEA HAWKINS was also
implicated. After a prosecution was initiated, the police
informant was murdered and J.C. and RECEA HAW-
KINS were implicated by testimony of an overheard
conversation. Evidence included the tearful testimony of
the deceased’s bereaved wife and mother and the intro-
duction of grizzly color photographs of the shotgunned body
to illustrate the pathologist’s equally descriptive testimony.
6. Drugs:
a. Estes Purchases. In 1974 ESTES arranged with J.C.
HAWKINS to purchase “MDA” from RECEA HAW-
KINS. On three occasions, he obtained ounces of this
“brown powder” from RECEA HAWKINS. Later a
quantity of a similar substance was seized from the apart-
ment of RECEA HAWKINS’ estranged wife.
b. Jamaican Conspiracy. Unindicted co-conspirator
RANDALL went to Jamaica in late 1972 to attempt to get
a marijuana or amphetamine source for J.C. HAWKINS,
pursuant to an agreement between RANDALL, J.C.
HAWKINS and one BARNES. $1,500.00 was sent by
J.C. HAWKINS to RANDALL through various inter-
mediaries and Western Union. The deal fell through when it
developed that the pilot with whom RANDALL was
dealing was a Drug Enforcement Administration Agent.
c. Hawkins-Day “Conspiracy”. In April, 1976, J.C.
HAWKINS, along with unindicted co-conspirator SAPP,
talked with one DAY about “running some dope for him’’.
Pilot DAY promptly became informer DAY and, while
wired for sound, held another conversation with J.C.
HAWKINS on the subject. That conversation involved
substantial discussion of ways and means of acquiring and
disposing of marijuana and, additionally mentioned a
number of prior marijuana importation schemes in which
HAWKINS claimed to have been involved.
d. The “Porch Conspiracy”. Spring, 1971—Unindicted
co-conspirator FUCHS arranged through his friend,
Defendant ELLIOTT, to have BRELAND construct a
screen porch in exchange for 2800 biphetamine capsules.
e. The Mexican Conspiracy. Late 1973-early 1974,
unindicted co-conspirators MARTIN and JACKSON
traveled to Mexico in an unsuccessful attempt to acquire
heroin (according to MARTIN) or marijuana (according to
JACKSON) pursuant to an agreement with Defendant
TAYLOR. They were arrested in Texas on a Dyer Act
Violation.
f. The Canadian Conspiracy. Early 1973, unindicted
co-conspirator GREEN, professional car thief and arson-
ist, testified that he purchased MDA (a gray powder) and
amphetamines from DELPH and TAYLOR who told him
that they were acquiring the drugs from a chemist in
Canada. The possibility of using GREEN’S brother-in-law
in Buffalo to assist was discussed.
g. Other drug transactions.
1. Spring, 1971, FUCHS gave Defendant ELLIOTT
12 13
500 dexadrine capsules because he asked for them. fatal variance between the indictment and the proof in that
2. In early 1972, BOYD purchased quantities of Count One of the indictment charged one general
amphetamine pills from DELPH which he said came conspiracy in violation of Title 18 U.S.C. §1962(c), while
from California. the proof at best for the Government showed several
3. In 1972, BOYD purchased quantities of ampheta- separate ones.
mine pills from TAYLOR which he said came from J.C. For this Honorable Court’s convenience the diagram
HAWKINS. . | below has been prepared to aid the Court in understanding
4, Defendant DELPH gave JACKSON approximate- the various facets of allegations and proofs discussed,
ly 25 pills. | supra, regarding the individual Defendants’ involvement in
5. During the summer or fall of 1973, FUCHS the criminal activity brought to the jury’s attention:
purchased a group of pharmaceutical drugs including |
Ritalin from J.C. HAWKINS. | INVOLVEMENT OF DEFENDANTS IN ¢ CRIMINAL ACTIVITIES ALLEGED
No other common source, agreement, or connection was
established in the Government’s case. No further inference a
was established which interrelated any of the Defendants or Co-
unindloted do-conepiratots. J.C. RECEA FOSTER ELLIOTT TAYLOR DELPH CONSPIRATORS
ARSON
(12-70) x xX x x
TITLES
| (1971) x x x x
REASONS FOR GRANTING THE WRIT STOLEN
| HORMEL
MEAT
I. (4-72) x x
STOLEN
MEAT &
THE DISTRICT COURT AND COURT OF DAIRY PROD.
APPEALS ERRED IN HOLDING THAT 18 Se 2% x
U.S.C. §1961 et seq (RICO) AUTHORIZES SHIRTS.
A JOINT TRIAL OF DEFENDANTS, WHO, (11-73) x xX x
UNDER THE EVIDENCE PRESENTED, OBSTRUC-
COULD NOT HAVE BEEN JOINTLY Hand
TRIED UNDER THE HOLDING OF Kot- (5-73) X x x
teakos v. United States, 328 U.S. 750 (1946) MURDER
AND ITS PROGENY. ‘. (G97) x XxX
DRUGS
(1974) xX X xX
The Petitioners insist that there was a prejudicial and ~ (1972) x
(1976) x
(1971) x ;
(1973-74) x x
(1973) x x x
|
14
The Petitioners rely on that line of cases beginning with
Kotteakos v. United States, 328 U.S. 750 (1946), which
held that where one general conspiracy is charged, proof of
several separate conspiracies constitutes a variance and
reversal is required. While the proof herein tends to connect
some of the Defendants in a “common” conspiracy as to
certain activity, it completely fails to connect other of the
Defendants with the same “common” conspiracy. On the
contrary, it tends to show the existence of, and to connect
some of the Defendants with, entirely ‘‘separate’’. and
distinct conspiracies. There is no evidence to make an
overall tie-in of all the Defendants in the one general
conspiracy alleged in Count One. The Fifth Circuit had
held that with a record similar to the one at bar, while it
would have been entirely permissible to have tried all these
persons and all these conspiracies together in one
indictment in several counts, it was reversible error to send
them all to the jury under an indictment charging one
general conspiracy. Brooks v. United States, 164 F.2d 142
(Sth Cir., 1947).
Nowhere does there appear the foremost essential
element of a conspiracy charge: ‘‘an agreement’’, between
the various Defendants to act in concert, to work together
understandingly, with a single design for the accomplish-
ment of a common purpose. The essence of a conspiracy
lies in the agreement:
“That agreement must be distinctly and directly
alleged. Inference and implication will not, on
demurrer, suffice. Aid cannot be sought in the allega-
tions of what was done in pursuance of it... what was
done is often good evidence of what was agreed to be
done, but to allege such evidence is not an allowable
substitute for a clear statement of the agreement which
is proposed to be proven.’’ Hamner v. United States,
134 F.2d 592, 595 (Sth Cir., 1943).
a
———
15
Where various defendants separately conspired with a
common conspirator, without an overall goal or common
purpose then several conspiracies exist. The ubiquitous
allegations contained in Count One are relied upon by the
Government to provide a common link between unrelated
transactions by wording said Count in the nature of a
‘wheel conspiracy” in which J.C. HAWKINS at the hub
of the wheel might have conspired with RECEA HAW-
KINS, FOSTER, ELLIOTT, TAYLOR, DELPH, and
others representing different spokes, in separate trans-
actions to commit the substantive offenses charged and the
overt acts alleged. There is absolutely nothing in the record
which tends to prove that those people who formed the
wheel’s spokes were aware of each other or did something
in furtherance of some single, illegal enterprise, or require-
ment necessary to form the rim of the wheel to enclose the
spokes. The United States Court of Appeals for the Fifth
Circuit recently stated in this regard:
“If there is not some interaction between those
conspirators who form the spokes of the wheel as to at
least one common illegal object, the “wheel is
incomplete, and two conspiracies rather than one are
charged.” United States v. Levine, 546 F.2d 658, 663
(Sth Cir., 1977).
The Court in Levine, supra, at 665, recognized the same
false premise as is present in the instant case: ‘‘The only
real underpinning for the government’s conspiracy count
was the false legal premise that proof of proximate or
simultaneous conspiracies with one common conspirator
was sufficient to establish the existence of a single
conspiracy.”” Such premise is false because it must be
shown that each defendant knew or must have known of
their confederates and they acted in furtherance of a
16
common plan. In the instant case no substantial identity of
facts, temporal relationships or participants as is necessary
to satisfy Rule 8(b), Federal Rules of Criminal Procedure,
exists between these alleged conspiracies. The indictment
as drawn contravenes Rule 8(b) joinder, requiring that
judgment of conviction and sentences be reversed.
Further, the trial judge’s failure to instruct on multiple
conspiracies compounds the error below. Since there was
not sufficient evidence from which it could be concluded
that there was one overall conspiracy, the jury was not
properly instructed in order that they could find multiple
conspiracies and still find the Defendants guilty. ““Without
being properly instructed, it was possible for the jury to
transfer guilt from one to another and to find defendants
guilty of an overall conspiracy although they were only
related to [one aspect of criminal activity].” United States
v. Varelli, 407 F.2d 735, 747 (7th Cir., 1969). As such, it
is necessary to void the convictions of all Defendants
because their rights were substantially prejudiced by a
single trial without proper instruction, although the same
was requested.
Not only was the instruction not given, but the law was
stated inaccurately and with an emphasis that assured the
jury’s return of a guilty verdict as to Count One:
“Now I point out to you that this indictment alleges
but one conspiracy you can find only the existence of
one conspiracy, and you must find the defendants were
each members of the same conspiracy. We are talking
about one conspiracy.”
Exception was taken to the Court’s given instruction, and
failure to instruct on multiple conspiracies, but the trial
judge perfunctorily ignored the same.
17
Notwithstanding the fact that Petitioner J.C. HAW-
KINS was the alleged hub in several of the conspiracies, his
conviction cannot stand. J.C. HAWKINS was the
principle target of the Government’s theory of the case, and
the Government attempted to produce evidence to connect
him with all but one substantive count (Count Seven) and
many of the overt acts of the conspiracies. To the extent
that there were conspiracies between two or more persons
in connection with the alleged and proffered transactions,
J.C. HAWKINS, as the so-called ‘‘beak of the octopus’”’,
was said to be a direct participant therein, had knowledge
attributed to him of such conspiracies, and was charac-
terized as being aware of their nature and purpose.
“But there is nevertheless wholly lacking any evidence
showing that there was a single over-all conspiracy to
engage in these separate and distinct transactions which
occurred at different times and places and involved varying
persons and methods of operation.”’ Fernandez v. United
States, 329 F.2d 899, 905 (9th Cir., 1964). At most, the
evidence establishes several diverse conspiracies radiating
from J.C. HAWKINS, many of which wherein he allegedly
participated, and in a few of which the other Defendants
and unindicted co-conspirators participated. In a like
situation, one in J.C. HAWKINS’ posture was recognized
as having standing, causing the conspiracy count as to him,
as well as his fragmented co-defendants to fall, with
judgments of acquittal entered thereon. The rationale for
this position is the importance of the observance of form as
it relates to substance. We cannot waive procedural
requirements simply because the evidence points to
defendant’s “guilt’”’ in general. When the rules are violated,
they must quickly be cured, or else the safeguards erected
for a fair trial will crumble swiftly.
18
At the inception of the case, the Petitioners anticipated
the very problem to which this Argument is addressed,
when they moved for severance pursuant to Rule 14,
Federal Rules of Criminal Procedure. The Petitioners
sought to sever Count One from the remaining substantive
counts. The Trial Court summarily denied the motion.
It is submitted that the evidence on none of the
substantive counts would have permitted a finding of guilt
by the jury without the jury having been unduly influenced
by the mass of unconnected and highly prejudicial material
submitted in support of the conspiracy count (ie.,
compare-——Overt Act (21) of Count One: “On or about
May 17, 1974, JOHN CLAYBURN HAWKINS, JR.
a/k/a J.C., either singlehandedly or in combination with a
person or persons to the grand jury unknown, murdered
JAMES REEVES in Dodge County, Georgia, by shooting
him three times at point blank range with a 16 gauge
shotgun” with Count Two, 3(f): “On or about May 27,
1974, JOHN CLAYBURN HAWKINS, JR., a/k/a J.C.,
committed murder in violation of Georgia Code Ann. 26-
1101 in that he caused the death of JAMES REEVES in
Dodge County, Georgia” with JAMES GUNNELL’S
testimony that it was not J.C. HAWKINS who purportedly
committed murder.
In addition to the problem of the spill-over from the
conspiracy to the substantive counts (cf Kotteakos v.
United States, supra, at 774), evidentiary considerations
which would apply to the conspiracy, if the same were
excised, would not be applicable as proof of the substantive
counts. “Federal Jury Practice and Instructions”, DeVitt
and Blackmar, Sec. 29.06; United States v. Harrell, 436
F.2d 606 (Sth Cir., 1970).
In its opinion of April 21, the Fifth Circuit held, in a case
19
of first impression, that a Congressional enactmeni had
radically changed the applicability to criminal prosecution
of more than thirty years of Constitutional interpretation by
the United States Supreme Court and the various Courts of
Appeal.
Considering the proliferation of prosecutions under 18
U.S.C. §1962 (RICO) and the preference of prosecutors
for multi-defendant conspiracy trials, there can be no doubt
that this case will be used and cited extensively for the
proposition that:
... RICO had displaced many of the legal precepts
that traditionally applied to concerted criminal activ-
ity. Its effect in this case is to free the government from
the strictures of the multiple conspiracy doctrine and to
allow the joint trial of many persons accused of
diversified crimes. 571 F.2d at P.900.
Such a drastic departure from prior law should not be
authorized by the Court.
While apparently agreeing with Petitioners’ argument
that the multiple conspiracy doctrine would have required
reversal under “prior law’’, the Fifth Circuit held that such
law has been significantly altered by Congress’ passage of
the RICO Statute. The theory upon which the Court Below
upheld the Count One conviction was first advanced by the
Government at oral argument and has therefore never
become the subject of thoughtful adversarial presentation.
Only by granting this Petition may the Courts derive the full
benefit of the measures provided by our judicial system for
the clarification and submission of legal controversies for
decision.
There can be no doubt that in Public Law No. 91-452, 84
Stat. 922 (Organized Crime Control Act of 1970),
Congress intended to strengthen the prosecutor’s arsenal for
20
the war against organized crime. The April 21st opinion of
the Court Below, however, hands to the prosecutor a
weapon which Congress never claimed to control and which
had heretofore been expressly withheld by the Courts. That
weapon is no more and no less than the opportunity to
inflict severe sentences in an efficient but unfair proceeding.
The doctrine of multiple conspiracy is a concomitant of
the proposition that a conspirator may not be held
vicariously liable for criminal acts outside the scope of his
agreement. Neither principle is violated by a Statute (like
RICO) which enhances the penalty for conspirators who
enter into an agreement of a particular scope (conducting
the affairs of an enterprise through a pattern of racketeer-
ing). The manner of trial must still allow for the individual-
ization of guilt demanded by Kotteakos and by the Fifth
Amendment.
Some logic adheres to the proposition that persons
employed by or associated with some formis of enterprise
might properly be tried under a single count with others who
were unknown to them and of whose criminal acts in the
conduct of that enterprise’s affairs they had no knowledge.
Application of such a proposition to any given factual
situation must, however, involve careful analysis of the
nature of the enterprise and the definition of what its
“affairs” are. Such analysis and definition are lacking in the
argument of the Government and the April 21st opinion.
Congress’ expansive definition of enterprise [18 U.S.C.
§ 1971(4)] clearly contemplates the existence of an entity
which can fairly be said to have “affairs’’. In this case, the
Government proposed and this Court accepted the theory
that the “‘enterprise’”’ was a group of individuals associated
in fact.
a
a ee ee,
21
By its very nature such an enterprise is subject to
temporal and spatial definition. Each member of a group
associated in fact may, in fact, be associated with others at
other times and at other places. Each is likewise free to
conduct his own affairs (and thus, those of a distinct
enterprise/entity) independently of any group. Thus, an
enterprise of this character exists only so long as and to the
extent that its members associate for their common benefit
or purposes. Such was the enterprise confronted in United
States v. Morris, 532 F.2d 435 (5th Cir., 1976) and it is
clear that, to the extent that the Fifth Circuit is correct in
applying RICO to “illegitimate enterprises”, the statute
provides punishment for members of such ad hoc criminal
committees.
It does not follow, however, that the convictions before
this Court were properly obtained. If due process prevents
the prejudicial joinder for trial of multiple conspiracies, the
same Constitutional considerations should prevent the
prejudicial joinder of multiple enterprises. Conceding every
possible inference from and interpretation of the evidences
in support of the conviction, certain co-defendants were
shown to have been associated with each other and with
J.C. HAWKINS during certain periods of time and to have
conducted the affairs of that “enterprise” through a pattern
of racketeering involving certain illegal activities. If J.C.
HAWKINS associated with his brother and with other co-
defendants to commit other crimes at other times, such are
not acts in the conduct of the affairs of the enterprise of
which all defendants were arguably members; and to allow
trials such as this violates the basic fairness of our Judicial
System.
22
CONCLUSION
For the foregoing reasons, it is respectfully submitted that
the Petition for a Writ of Certiorari should be granted.
Respectfully Submitted,
OSCAR B. GOODMAN, ESQ.
GOODMAN, OSHINS,
BROWN & SINGER,
CHARTERED
1600 Valley Bank Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Counsel for Petitioners
CERTIFICATE OF SERVICE
It is hereby certified that true and correct copies of the
above and foregoing Petition for a Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit was
mailed this 3rd day of July, 1978, postage prepaid, to the
Honorable Wade H. McCree, Jr., Solicitor General, United
States Department of Justice, Washington, D.C. 20530.
APPENDIX A
UNITED STATES of America,
Plaintiff-Appeliee,
V.
James Alford ELLIOTT, Jr., Robert Ervin Delph, Jr.,
William Marion Foster, Recea Howell Hawkins,
John Clayburn Hawkins, Jr., a/k/a J.C. and John
Frank Taylor, Defendants-Appellants.
No. 76-3678.
United States Court of Appeals,
Fifth Circuit.
April 21, 1978.
Defendants were convicted before the United States
District Court for the Middle District of Georgia, Wilbur
D. Owens, Jr., J., of violations of the Racketeer Influenced
and Corrupt Organizations Act, and they appealed. The
Circuit Court, Simpson, Circuit Judge, held that: (1)
evidence in prosecution for conducting and participating in
conduct of affairs of an enterprise through pattern of racke-
teering activity demonstrated existence of enterprise
and sustained defendants’ convictions; (2) trial court had no
duty to instruct jury on multiple conspiracies, since no
possibility of variance appeared at trial; (3) evidence
sustained conviction of one defendant for conspiring to
2a
conduct or participate in affairs of an enterprise through
pattern of racketeering activity; (4) evidence that defendant
used a close friend as a personal source of amphetamines
and that defendant disposed of small amount of meat which
had been stolen by enterprise was insufficient to sustain
conviction of conspiracy to conduct or participate in affairs
of an enterprise through pattern of racketeering activities,
and (5) trial court’s action in restricting defense counsel’s
cross-examination into certain details of agreements
between Government and its witnesses did not violate
defendants’ Sixth Amendment right of confrontation, it did
not constitute reversible error.
Affirmed in part and reversed in part.
1. Criminal Law 878(3)
The principle that an acquittal on substantive offense
does not preclude verdict of guilty on count charging
conspiracy to commit such substantive offense applies with
equal force where alleged conspiracy had as its purpose far
more than the commission of single substantive offense of
which defendant was acquitted.
2. Commerce 82.5
The Racketeer Influenced and Corrupt Organizations
Act encompasses not only legitimate businesses but also
enterprises which are from their inception organized for
illicit purposes. 18 U.S.C.A. §1961 et seq.
3. Commerce 82.5
In defining term “enterprise” for purposes of the
Racketeer Influenced and Corrupt Organizations Act, there
is no distinction between a duly formed corporation that
elects officers and holds annual meetings and an amoeba-
. —— mene — a ts ae a
3a
like infra-structure that controls a secret criminal network.
18 U.S.C.A. §§1961 et seq., 1961(4).
See publication Words and Phrases for other judicial
constructions and definitions.
4. Commerce 82.5
In prosecution under the Racketeer Influenced and
Corrupt Organizations Act, jury is entitled to infer
existence of enterprise on basis of largely or wholly
circumstantial evidence. 18 U.S.C.A. §§1961 et seq.,
1961(4).
5. Commerce 82.5
In order to fall within provisions of Racketeer Influenced
and Corrupt Organizations Act, the two or more predicate
crimes must be related to the affairs of the enterprise, but
need not otherwise be related to each other. 18 U.S.C.A.
§§1961 et seq., 1962(c).
6. Commerce 82.5
In prosecution for conducting and participating, directly
and indirectly, in conduct of affairs of an enterprise through
pattern of racketeering activities, evidence demonstrated
existence of an enterprise and sustained defendants’
convictions.
7. Conspiracy 40
The essential element of a chain conspiracy, allowing
persons unknown to each other and never before in contact
to be jointly prosecuted as coconspirators, is interdepen-
dence; scheme which is the object of conspiracy must
depend on successful operation of each link in the chain.
4a
8. Conspiracy 28(1)
Generally, where Government has shown that number of
otherwise diverse activities were performed to achieve a
single goal, courts have been willing to find a single
conspiracy.
9. Conspiracy 24
Under the general federal conspiracy statute, the precise
nature and extent of conspiracy must be determined by
reference to agreement which embraces and defines its
objects; whether the object of single agreement is to commit
one or many crimes, it is in either case that agreement
which constitutes the conspiracy which statute punishes. 18
U.S.C.A. §371.
10. Conspiracy 28(1)
In prosecution under the Racketeer Influenced and
Corrupt Organizations Act for conspiracy to conduct or
participate in affairs of an enterprise through pattern of
racketeering activity, gravamen of conspiracy charge was
not that each defendant agreed to commit predicate crimes,
but rather, it was that each agreed to participate, directly
and indirectly, in the affairs of enterprise by committing two
or more predicate crimes. 18 U.S.C.A. §1962(c, d).
11. Criminal Law 59(1)
Under the Racketeer Influenced and Corrupt Organiza-
tions Act, it is irrelevant that each defendant participated in
enterprise’s affairs through different, even unrelated crimes
so long as court may reasonably infer that each crime was
intended to further enterprise’s affairs. 18 U.S.C.A.
§1962(c, d).
Sa
12. Criminal Law 59(1)
The substantive proscriptions of the Racketeer Influ-
enced and Corrupt Organizations Act apply to insiders and
outsiders who participate directly and indirectly in the
enterprise’s affairs through a pattern of racketeering
activity. 18 U.S.C.A. §1962(c).
13. Conspiracy 40
In prosecution under Racketeer Influenced and Corrupt
Organizations Act, once conspiracy to conduct or partici-
pate in affairs of an enterprise through pattern of racke-
teering activity is established, Government need show only
slight evidence that particular person was a member of the
conspiracy; a party to conspiracy need not know the
identity, or even the number, of his confederates. 18
U.S.C.A. §1962(c).
14. Conspiracy 40
To be convicted as a member of enterprise conspiracy
underthe Racketeer Influenced and Corrupt Organizations
Act, an individual, by his words or actions, must have
objectively manifested an agreement to participate, directly
or indirectly, in the affairs of an enterprise through the
commission of two or more predicate crimes; one whose
agreement with the members of an enterprise did not
include that vital element cannot be convicted under the
Act. 18 U.S.C.A. §1962(c).
15. Conspiracy 44%
When evidence in enterprise conspiracy prosecution
under the Racketeer Influenced and Corrupt Organizations
Act established that each defendant, over a period of years,
committed several acts of racketeering activity in further-
6a
ance of enterprise’s affairs, the inference of an agreement to
do so is unmistakable. 18 U.S.C.A. §1962(c).
17. Criminal Law 633(1)
Constitution does not guarantee a trial free from
prejudice that inevitably accompanies any charge of
heinous group crime; it demands only that potential for
transference of guilt be minimized to the extent possible
under the circumstances in order to individualize each
defendant in his relation to mass.
18. Conspiracy 40
Constitutional Law 257
The Racketeer Influenced and Corrupt Organizations
Act, pursuant to which defendant may be convicted as a
member of enterprise conspiracy if he objectively manifests
an agreement to participate in affairs of enterprise through
commission of two or more predicate crimes, does not
offend fundamental demand of due process that guilt remain
individual and personal. 18 U.S.C.A. §§1961 et seq.,
1962 (c, d).
19. Conspiracy 48.2(2)
In prosecution under Racketeer Influenced and Corrupt
Organizations Act for conspiracy to conduct or participate
in affairs of an enterprise through pattern of racketeering
activity, trial court had no duty to instruct jury on multiple
conspiracies, since no possibility of variance appeared at
trial. 18 U.S.C.A. §1962(c).
20. Criminal Law 822(4)
In prosecution under Racketeer Influenced and Corrupt
Organizations Act for conspiracy to conduct or participate
te i i a
at ee
7a
in affairs of an enterprise through pattern of racketeering
activity, trial court’s instruction that jury “‘must find’’ a
single conspiracy, when read in connection with other
instructions informing jury what they were required to find
“in order to find the defendant guilty,” did not usurp jury’s
function and did not require jurors to find, as a matter of
law, that each defendant was member of single conspiracy.
18 U.S.C.A. §1962(c).
21. Conspiracy 47(3)
Evidence in prosecution under Racketeer Influenced and
Corrupt Organizations Act for conspiracy to conduct or
participate in affairs of an enterprise through pattern of
racketeering activity sustained conviction. 18 U.S.C.A.
§1962(c).
22. Criminal Law’ 1159.6
Where Government relies mainly upon circumstantial
evidence to establish defendant’s guilt, reviewing court tests
sufficiency of evidence by asking whether jury might
reasonably have concluded that evidence failed to exclude
every reasonable hypothesis but that of guilt.
23. Conspiracy 47(3)
In prosecution under Racketeer Influenced and Corrupt
Organizations Act for conspiracy to conduct or participate
in affairs of an enterprise through pattern of racketeering
activity, evidence that defendant used a close friend as a
personal source of amphetamines and that defendant
disposed of small amount of meat which had been stolen by
enterprise was insufficient to sustain his conviction. 18
U.S.C.A. §1962(c).
8a
24. Receiving Stolen Goods 2
State certificate of title for automobile is a “‘security”’ for
purposes of statute prohibiting receiving and disposing of
counterfeit securites moving in interstate commerce. 18
U.S.C.A. §§2211, 2315.
25. Criminal Law 662(1)
The Sixth Amendment confrontation clause guarantees
criminal defendant the right to cross-examine a witness
against him. U.S.C.A. Const. Amend. 6.
26. Witnesses 267
While scope of cross-examination is within discretion of
trial judge, such discretionary authority to limit cross-
examination comes into play only after there has been
permitted as matter of right sufficient cross-examination to
satisfy Sixth Amendment. U.S.C.A. Const. Amend. 6.
27. Criminal Law 662(1)
In prosecution under Racketeer Influenced and Corrupt
Organizations Act for conspiracy to conduct or participate
in affairs of an enterprise through pattern of racketeering
activity, trial court’s action in restricting defense counsel’s
cross-examination into certain details of agreements
between Government and its witnesses did not violate
defendants’ Sixth Amendment right of confrontation, in
view of fact that jury was aware that most of Government's
witnesses were coconspirators and convicted felons testi-
fying under grants of immunity and other agreements with
prosecution. U.S.C.A. Const. Amend. 6.
9a
28. Criminal Law = 117044(5)
In prosecution for conspiracy to commit or participate in
affairs of an enterprise through pattern of racketeering
activity, defendant was not prejudiced by trial court’s
erroneous ruling prohibiting defense counsel’s cross-
examination of government witness to determine whether
Government had provided its witness with a permit for
machine gun that would not ordinarily be available to
others, in view of fact that government witness was
otherwise subjected to vigorous and thorough cross-
examination by several defense counsel.
29. Criminal Law’ 117044(5)
In prosecution for conspiring to conduct or participate in
affairs of an enterprise through pattern of racketeering
activity, trial court’s erroneous ruling requiring defense
counsel to inform jury that she had no independent proof of
a deal between state and federal authorities relating to a
government witness did not constitute reversible error,
since substance of impeaching information was conveyed to
jury.
30. Conspiracy 43(12)
Government is not limited to overt acts pleaded in the
indictment in proving a conspiracy; it may show other acts
of conspirators occurring during the life of the conspiracy.
31. Conspiracy 43(12)
In prosecution for conspiracy to conduct or participate in
affairs of enterprise through pattern of racketeering activity,
trial court did not err in admitting evidence of defendants’
drug transactions over defendants’ objections that such
10a
transactions were not mentioned in indictment, in view of
fact that first count of indictment identified such defendants
as members of conspiracy and charged, in part, that it was a
part of the conspiracy that defendants illegally trafficked in
narcotics and other dangerous drugs, and such language put
each defendant on notice that overt acts of narcotics
trafficking might be proved at trial. 18 U.S.C.A. §1962(c).
Appeals from the United States District Court for the
Middle District of Georgia.
Before AINSWORTH, SIMPSON and MORGAN,
Circuit Judges.
SIMPSON, Circuit Judge:
In this case we deal with the question of whether and, if
so, how a free society can protect itself when groups of
people, through division of labor, specialization, diversifi-
cation, complexity of organization, and the accumulation of
capital, turn crime into an ongoing business. Congress fired
a telling shot at organized crime when it passed the
Racketeer Influenced and Corrupt Organizations Act of
1970, popularly known as RICO. 18 U.S.C. §§1961 et
seq. (1970). Since the enactment of RICO, the federal
courts, guided by constitutional and legislative dictates,
have been responsible for perfecting the weapons in
society’s arsenal against criminal confederacies.
Today we review the convictions of six persons accused
of conspiring to violate the RICO statute, two of whom
were also accused and convicted of substantive RICO
violations. The government admits that in this prosecution
lla
it has attempted to achieve a broader application of RICO
than has heretofore been sanctioned. Predictably, the
government and the defendants differ as to what this case is
about. According to the defendants, what we are dealing
with is a leg, a tail, a trunk, an ear—separate entities
unaffected by RICO proscriptions. The government, on the
other hand, asserts that we have come eyeball to eyeball
with a single creature of behemoth proportions, securely
within RICO’s grasp. After a careful, if laborious study of
the facts and the law, we accept, with minor exceptions, the
government’s view. Because of the complicated nature of
this case, both factually and doctrinally, a detailed explica-
tion of the facts and of the reasoning underlying our
conclusions must be undertaken.
I. THE FACTS
Simply stated, this is a case involving a group of persons
informally associated with the purpose of profiting from
criminal activity. The facts giving rise to this generaliza-
tion, however, are considerably more complex. Evidence
presented during the 12 day trial implicated the six
defendants and 37 unindicted co-conspirators in more than
20 different criminal endeavors. Because the jury found the
defendants guilty as charged, with two exceptions, we
proceed on the assumption that all relevant credibility
choices were made in favor of the government. Glasser v.
United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680
(1942). The facts can most clearly be set forth by focusing
on specific episodes, arranged in roughly chronological
order.
12a
A. 1970, Act One: Arson:
The history of the first Community Convalescent
Nursing Home in Sparta, Georgia, began when defendant
William Marion Foster encouraged a group of 34 blacks to
invest in the project and ended several months later when
the completed but unoccupied home was burned to the
ground at Foster’s behest. The second Community Con-
valescent Nursing Home was then built, at a profit, by
Foster’s construction company.
Foster, who had been in the construction and nursing
home business, arranged for an SBA loan to the B.F.
Hubert Development Corporation, comprised of 34 blacks.
In expressing his willingness to help, Foster noted that SBA
loans were available but that, tragically, many blacks did
not know how to secure them. Foster set up a corporation,
Community Convalescent Center, Inc., to lease the nursing
home from the B.F. Hubert group. Construction on the
home was completed in the summer of 1970, after which
James E. McMullen, a coowner of the leasing corporation,
worked to ready the home for its scheduled opening on
December 4, 1970. On the evening of December 2, Foster
ordered McMullen to fire the night watchman, Tommy
Barnes.’ The next night McMullen and his wife worked at
the home until 11:00 p.m., when they left, locking the doors
behind them. Within hours, the front door of the home was
unlocked, and gasoline and explosives were strewn through
the halls and ignited. An investigation by the Georgia State
'Foster denied having ordered the night watchman fired and
attempted to prove that McMullen himself was employed as a night
watchman, an allegation which McMullen denied. We assume that the
jury chose not to believe Foster’s account.
l3a
Fire Marshal’s Office reached the conclusion that the fire
was intentionally set, but the perpetrators were never
caught.
The crime might have remained unsolved had it not been
for admissions made three years later by Foster and
codefendant John Clayburn Hawkins, ironically nicknamed
“J.C... Foster and J.C. had been attempting to elicit the
cooperation of their friend and occasional business
associate James Gunnells in the concealment of a stolen
shipment of meat and dairy products (an incident discussed
later in this opinion). To show that he and J.C. were
serious, Foster told Gunnells that he had paid J.C. and his
brother, Recea Hawkins—also a codefendant—$4500 to
burn the Community Convalescent Nursing Home. Gun-
nells, who was also in the nursing home business, replied
that there was nothing in a nursing home to burn. J.C.
explained that he had used three 55 gallon drums of
gasoline and one drum of naphtha and had no problem in
starting the fire.
B. Counterfeit Titles/Stolen Cars:
From mid-1971 until at least the end of 1974, J.C.
Hawkins and codefendants Robert Ervin Delph, Jr., and
John Frank Taylor furnished counterfeit titles to and helped
sell cars stolen by a major car theft ring operating in and
near Atlanta, Georgia.
J.C. procured 200 counterfeit Georgia certificates of title
in mid-1971 by furnishing negatives of titles to a Macon
printer, Marvin Farr. After printing the 200 titles, Farr
destroyed the negatives and the plates and buried the
remains in his back yard. J.C. had also commissioned Farr
to print books of state vehicle inspection stickers, for which
14a
he again furnished the negatives. Farr, however, was unable
to complete the order because he could not devise a way to
apply adhesive to the stickers. After a visit from J.C. during
which J.C. demanded the inspection stickers “‘or else’, T.
851, Farr left town. He was later arrested in Denton,
Texas, and returned to Macon on state counterfeiting
charges. In Macon he was contacted by Abe Crosby, an
attorney and unindicted co-conspirator in this case. Crosby
told Farr that he had been sent by people that Farr “was
scared of” and that J.C. Hawkins wanted Farr to keep his
mouth shut. After his release from jail, Farr was visited at
his place of employment by J.C., who told him that he,
Farr, was crazy “and that nobody talked about [J.C.] and
got away with it”. T. 856.
The car theft ring was comprised of Billy Royce Jackson,
James A. Breen, and Kenneth Sutton Boyd, all convicted
car thieves and key witnesses for the prosecution in this
case. Each testified that on several occasions he purchased
counterfeit certificates of title from Delph and Taylor for
$25 or $50 apiece. Green and Boyd testified that Delph and
Taylor more than once identified their source of counterfeit
titles as a man named “‘J.C.”’ in Macon.? Similarly, Larry
Estes, a cousin of James Gunnells, purchased several
counterfeit titles from J.C., both directly and through a
middleman, Joe Breland. Green testified that in 1972 and
1973, he stole cars on request for Delph and Taylor. In the
late summer or early fall of 1974, J.C. visited Green at the
furniture store where Green was employed and asked him
to steal two cars. Over the next year, Green stole several
cars for J.C., at $400 per car. Recea Hawkins often
: 2Green testified that Taylor specifically named J.C. but that Delph
identified his source only as someone in Macon.
~~ a
1Sa
accompanied his brother to pick up and pay for the cars.
Titles printed by Farr and distributed by J.C. were
recovered in Alabama, California, Florida, Georgia, North
Carolina, and Texas in connection with investigations of
car thefts. In some cases, however, J.C. was able. to
recapture both car and title before either fell into the hands
of the police. One such episode involved Benjamin F.
Chester, Jr., who leased from J.C. a lounge adjacent to a
liquor store owned and run by J.C. In 197], J.C. sold
Chester three cars “wholesale” and furnished the certifi-
cates of title. Chester, in turn, sold one of the cars to
Raymond Booker. Instead of having Chester sign his title
over to Booker, J.C. simply furnished Booker with a new
“title”. In July 1972, J.C. met with Chester and Booker at
the lounge and demanded that the cars and titles be returned
because they had “‘got hot’. T. 1007. Booker recalled no
threats from J.C., only the statement, “I’ve got to have my
car back so y’all don’t be hard headed”’. Chester, however,
was reluctant to return his cars and remembered that J.C.
finally stated, “‘I tell you what, if you don’t give me them
cars back, I will kill you myself or I will have you killed”’.
Both men returned their cars and titles.
C. Stolen Hormel Meat:
On March 30, 1972, a truckload of approximately
33,000 pounds of Hormel meat packed in cardboard boxes
left the packing plant in Fremont, Nebraska, consigned to
the Alterman Food Company in Atlanta, Georgia. The
trailer carrying the shipment arrived in Smyrna, Georgia,
late that night and was parked at the South Cobb Service
Station to be picked up by another driver, Byron Moseley,
for ultimate delivery on April 2. At 3:00 p.m. on April 1,
l6a
Moseley observed the tractor-trailer parked at the service
station. By 9:00 that evening, it had been stolen.’ The
abandoned tractor was found beside a highway south of
Atlanta the following day. About one month later, the
empty trailer was recovered in Warner Robbins, Georgia.
On the night of April 1, 1972, J.C. Hawkins visited
Rudolph Flanders at Flanders’ grocery store, the Pick and
Carry. J.C. asked if he could store boxes of Hormel Meat in
the cooler of the Pick and Carry, and Flanders consented.
Over the next few days, J.C. stored 40 to 50 boxes of meat
which he sold with some assistance from Flanders. At some
point that month, J.C. offered to sell a “semi-trailer truck”’
of meat to Larry Sykes for $7,000. Sykes contacted his
brother, who was in the meat packing business, and was
advised to pass up the deal because the meat “was just too
low priced”. T. 769. At about the same time, codefendant
James Alford Elliott, Jr., sold a 50 pound piece of Hormel
The government notes in its brief that Robert Delph was present at
the service station when Moseley observed the trailer there shortly
before its theft on April 1 and that five or six months earlier Delph had
been employed to drive that same tractor. Since the government proved
Delph’s involvement in more than enough criminal acts to satisfy the
requirements for a RICO conspiracy, we need not decide whether this
evidence is sufficient to prove Delph’s involvement in the trailer theft.
Similarly, the government cites testimony from Kenneth Boyd, a
member of the car theft ring, to implicate Delph and Taylor in the
scheme to distribute the stolen Hormel meat. Boyd testified that in “the
spring of 1972” Delph offered to sell him a “truckload of meat” which
he described as “‘swinging beef’, T. 1252-53, and that around the same
time, Taylor offered to sell him “some meat”. T. 1262-63. For the
reason stated above, we need not decide whether this evidence is
sufficient to prove that Delph and Taylor attempted to sell the stolen
Hormel meat. We note, however, that the Hormel meat was not
“swinging beef” and that a shipment of meat of that description was not
stolen until the following year.
17a
meat to Joe Fuchs, then a pharmacist in Macon. Fuchs
returned the meat after he learned from a butcher friend that
it was not “‘legitimate”.* A year later, shortly before
‘Elliott, testifying in his own defense, denied this transaction with
Fuchs. A tape of a conversation between Elliott and Fuchs on January
30, 1976, recorded by the FBI with Fuchs’ consent and admitted into
evidence at the trial, supports Fuchs’ account. During the conversation,
which took place two days after Fuchs testified before a federal grand
jury, Elliott expressed concern that the government would use Fuchs to
implicate him in the Hormel meat episode. (We note that both men
mistakenly believed that the meat they were discussing was Swift
meat.)
ELLIOTT: I don’t want you to fuck me up, but I don’t know of
but one thing you could fuck me up on. . . They’ll try to make you
say you got it from J.C. But, if you remember, I didn’t bring it over
there; you come got it. So—there ain’t no way in hell they can tie
me in with it. Then you brought it back. Said you couldn’t—
FUCHS: Well, the meat inspector came down where I was
getting it cut up and said it was not too kosher and he either called
Woo or called me and told me he wasn’t going to cut it, and I said
Pll pick it up.
ELLIOTT: And you brought it back.
FUCHS: And I brought it back.
ELLIOTT: See, I didn’t bring it to you, so there’s no way in
hell they can tie me into it. T. 2108. ,
“* *
But still you didn’t get it from me. I believe you got it at my house,
but I don’t have a damn freezer. T. 2110.
Additionally, the tape corroborates Fuchs’ testimony that Elliott
sought to persuade Fuchs to tell the grand jury that he had been given
the meat by a former Swift employee, Jimmy Fincher, who was
deceased at the time of the grand jury’s investigation. In his
conversation with Fuchs on January 30, 1976, Elliott made the
following statements:
“Just like if you—just like this, if the man they blamed it on is
gone. He’s dead. There’s no crime in that if he’s dead. He can’t
testify”. T. 2107.
(continucd)
18a
Rudolph Flanders was tried in federal court for possession
of the stolen Hormel meat, J.C. told James Gunnells that
“it was his [J.C.’s] load of meat”, that he had purchased it
for approximately $10,000, and that Recea Hawkins was
also involved in the transaction.
D. Efforts to Influence the Outcome of the Stolen Meat
Trial:
[1] Rudolph Flanders’ trial for possession of the stolen
interstate shipment of meat took place during the first week
of May, 1973. Days before the trial, Flanders met with J.C.
Gunnells, and others, in the coffee shop of the old Grady
Hotel in Macon. At the meeting, the jury list for Flanders’
trial was passed around to “‘see who we knew on it and who
we could talk to”. T. 237. J.C. recognized one name on the
list, James Elliott, as that of a young man who lived behind
him. He indicated that he was certain Elliott would
cooperate if he were on the jury. Elliott was selected as a
juror at Flanders’ trial and, alone among the other 1 1 jurors,
voted for acquittal, causing a mistrial.*
(footnote continued from preceding page)
“But there’s no way in hell they could prove otherwise that Jimmy
Fincher sold you that meat, no way in hell”. T. 2108.
I damn sure wouldn’t tell them I got it over there. I'd tell them I
got it from Leon Fincher’. T. 2110.
Although Elliott was acquitted on Count Seven, corruptly endeavoring
to obstruct justice by encouraging Fuchs to lie to the grand jury, in
violation of 18 U.S.C. §1503, he was convicted on Count One, the
RICO conspiracy count, which included Elliott’s encouragement of
Fuchs as an overt act in furtherance of the conspiracy. As we explain in
note 5, infra, the jury was entitled to conclude that an act not criminal in
itself was committed in furtherance of a conspiracy.
‘This episode is mentioned twice in the indictment in this case, first
as an overt act in the broad conspiracy charge in Count One, and again
as the basis of the substantive charge of obstructing justice, : ees me
continue
n ta 4 pce) Preatbibeas Hotes By
dient
19a
E. September, 1973: A Truck Theft and Its Aftermath:
On September 24, 1973, a Caterpillar front-end loader
and a Ford dump truck were stolen from a construction site
near Atlanta. That night, J.C. Hawkins appeared at the
(footnote continued from preceding page)
of 18 U.S.C. §§1503 and 2, Count Four. J.C. Hawkins and Elliott
were named in both counts. Both were found guilty under Count One
but were acquitted under Count Four, Hawkins by jury verdict, Elliott
by directed verdict. Elliott now argues that his acquittal on the
substantive offense precludes consideration of that offense as part of the
conspiracy charge, citing United States v. Campanale, 518 F.2d 352,
358 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46
L.Ed.2d 638 (1976). Dicta in Campanale that acquittal on substantive
offenses “‘presumably eliminate[s] those acts from consideration under
the [RICO] conspiracy count” does not comport with prior case law in
this and other circuits. ‘“‘An acquittal on a substantive offense does not
preclude a verdict of guilty on a count charging a conspiracy to commit
such substantive offense’. United States v. Carlton, 475 F.2d 104,
106 (Sth Cir. 1973), cert. denied, 414 U.S. 842, 94 S.Ct. 100, 38
L.Ed.2d 80. This principle applies with equal force where, as here, the
alleged conspiracy had as its purpose far more than the commission of
the single substantive offense of which a defendant was acquitted. ““The
overt act . . . need not be a crime and is not a part of the offense charge,
but simply something done in furtherance of the object of the
conspiracy... .’’ Castro v. United States, 296 F.2d 540, 542-43 (Sth
Cir. 1961). Here, we are bound by the determination that J.C. and
Elliott did not commit the crime of obstructing justice in violation of 18
U.S.C. §1503. Nevertheless, we may infer that the jury, in finding J.C.
and Elliott guilty on Count One, concluded that both engaged in acts
“done in furtherance of the object of the conspiracy” but not criminal in
themselves—that J.C. promised to contact Elliott in an effort to hang
the Flanders jury, and that Elliott voted to acquit Flanders. We
recognize that Elliott’s vote to acquit is not unambiguously an act in
furtherance of the conspiracy and might, as Elliott testified, have been
based on a genuine conviction that the government had not proved
Flanders guilty beyond a reasonable doubt. Interpretation of Elliott’s
acts was within the province of the jury and we assume—with all due
“judicial skepticism”, United States v. Caro, 569 F.2d 411, 417 (Sth
Cir. 1978)—that the jury chose not to believe Elliott’s account.
20a
Eubanks Tire and Battery Company near Macon to
purchase a new tire for the stolen dump truck. He gave his
namie as “Roy Evans’, and remained on the opposite side
of the highway in a brown Buick while Tommy Ellison, an
employee of Eubanks, changed the tire.
In the pre-dawn hours of the following day, September
25, Terry Singleton, a Bibb County Sheriff's Deputy,
received a call from Jimmy Reeves. Reeves stated that J.C.
had just telephoned him and asked him to go to the Waffle
House at the intersection of I-475 and U.S. 80. Singleton
and his partner, Jim Reid, conducted a surveillance of the
Waffle House, where they observed J.C. with a light blue
Continental Mark IV and Reeves, in his pick-up truck.
Eventually, Reeves’ truck left the Waffle House, proceed-
ing west on U.S. 80. Singleton saw the truck slow down and
flash its left turn signal near an underpass, but it never
executed the turn. Within an hour, Singleton called Reeves
to learn what had happened. Reeves reported that he drove
J.C. along U.S. 80 so that J.C. could show him where the
dump truck and front-end loader were hidden, but that just
as he was about to turn left to reach the spot, J.C. observed
a marked patrol car and was “spooked”’. Singleton drove to
the area described by Reeves and found the stolen
equipment. On January 21, 1974, J.C. was indicted in state
court for the theft of the dump truck and front-end loader.
1. The Murder of Jimmy Reeves: In the spring of 1974,
J.C. and Gunnells had discussed the purchase of antique
watches and guns from Jimmy Reeves. One night in April
or May of that year, J.C. received a call at his home in the
presence of Gunnells. After the call, J.C. told Gunnells that
they should be glad they had not done business with
Reeves, whom J.C. then described as a “‘finking son of a
bitch”. Later that night, during a conversation about the
2la
state theft charges pending against him, J.C. commented to
Gunnells that “they wouldn’t have a witness”.
Early on the morning of May 27, 1974, Reeves received
a telephone call. He left his home in his pick-up truck
immediately after the call, explaining to his wife and
children that he did not have time to eat breakfast. At 8:40
that morning, in a church yard not far from his home,
Reeves’ body was found lying on the floor board of his
truck. He had been killed by three 16-gauge shotgun blasts
using Number One buckshot. Extensive powder burns
associated with two of Reeves’ wounds indicated that they
had been inflicted at a “very close” range. T. 556-57.
Two or three days after the Reeves murder, Gunnells was
present at J.C.’s house and overheard a conversation
between J.C. and his brother, Recea. J.C. asked, ‘‘How did
it go?”’, to which Recea responded, ‘First shot out of the
barrel and he didn’t even know what happened—didn’t even
see it coming”. Recea explained that he was “real sure’”’
because he was “‘close enough for powder burns’’. T. 321.
Other evidence circumstantially linking Recea to the Reeves
murder came from an eyewitness who observed a dark blue
car parked on a dirt road near the church yard shortly
before 8:00 on the morning of the murder. In May, 1974,
Recea owned a 1968 or 1969 dark blue Pontiac.
2. The Intimidation of Tommy Ellison: In September
1974, one year after he sold a tire to ‘Roy Evans”, Ellison
was approached at his place of work in Griffin, Georgia, by
two black men who offered to drive him to Atlanta to “have
some fun’’. Ellison explained that he could only go on a
rainy day, when he would not be required to work. About a
week later, on a rainy day, the men returned and drove
Ellison to Atlanta in a Lincoln Continental with two pistols
22a
lying on the front seat. During the ride, the men offered
Ellison $150 to make a statement that he did not know “a
friend of theirs”. Ellison agreed. In Atlanta, he was taken to
the office of Charles E. Clark, an attorney, where he signed
a sworn statement reading, in part, as follows:
Upon being introduced to a man called J.C. HAW-
KINS, I noticed immediately that this was not the man
to whom I gave tire service on the night of September
24, 1973. The man that I observed at the Eubanks Tire
Center was several inches taller and weighed more
than this man. I have never seen the man introduced to
me as J.C. Hawkins before in my life.
According to Ellison, this statement was false. After signing
it, he was introduced to J.C., who had been waiting in
another office. J.C. said, “I appreciate what you did and my
friends will take care of you, what they promised you’’, and
gave Ellison a drink of liquor. The two black men then
drove Ellison back to Griffin, but paid him only $25.
-F. Stolen Swift Meat and Dairy Products:
On October 19, 1973, a tractor-trailer load of swinging
beef, pork, veal, and lamb, and boxes of butter and cheese
was shipped from Nashville, Tennessee, aboard a Thomp-
kins Motor Lines refrigerated trailer. The shipment was
driven to a terminal in Decatur, Georgia, where it was
parked temporarily. At some point over the next two days,
the tractor and trailer were stolen by Milton Burnett and
Bill Rainey. On October 24, the abandoned tractor was
discovered near Forest Park, Georgia; the loaded trailer
had been sold to J.C. in Macon.
The first problem confronting J.C. was where to store the
large quantity of meat and dairy products that he had
illicitly acquired. The stolen goods probably would have
been kept at three nursing homes owned by Foster had it not
—_— =
23a
been for a fortuitous series of events the month before. In
September, 1973, Foster learned that the Georgia Bank
was about to foreclose on his nursing homes in Sparta,
Lumber City, and La Grange. To avoid losing the homes,
Foster went into business with James Gunnells, who loaned
him approximately $60,000. Foster, in turn, leased the
homes to Gunnells, effective October 1, 1973. Conse-
quently, before Foster could use the nursing homes for his
own purposes, he had to secure Gunnells’ permission.
On October 24, 1973, Foster and J.C. spoke to Gunnells
in Foster’s office. J.C. stated that he had “‘a semi-truckload
of swinging beef” parked at a truck stop on Gray Highway
and that he needed a place to store it. A “‘deal” that J.C.
and Foster had on the meat had fallen through, and now
they wanted Gunnells to release his leases on the nursing
homes so that Foster could have ac . zss to their refrigera-
tion units. Gunnells refused. J.C. told Gunnells that he was
‘a goddamn fool” and that, if he did not cooperate, he
would lose $8,500 that he had loaned to Foster over the
past two days.® Foster called Gunnells “silly” and
explained that “‘he could trust J.C. completely”. At this
point Foster related how he had paid J.C. and Recea
Hawkins $4,500 to burn the Sparta nursing home in 1970.
‘Although not essential to the government’s case, the jury could have
inferred that Foster borrowed this money to pay for the stolen meat and
dairy products. The loan was made to Foster through two checks from
Gunnells, one for $4,500 dated October 22, 1973, the other for $4,000,
dated October 23, both payable to Community Projects, Foster’s
corporation, and endorsed by Foster. According to Gunnells, Foster
explained that he needed the money for an apartment project under
construction by one of his corporations. Foster denied that the checks
represented a loan to him and testified that he had cashed them as a
favor to Gunnells and had turned the cash over to Gunnells. T. 2448.
The jury apparently chose not to believe Foster’s account.
24a
Finally, pressed by J.C. to come up with a place to put the
meat, Gunnells suggested that they move the trailer to the
farm of his friend, Howard Wooden.
That night, J.C. drove the tractor-trailer to Wooden’s
farm off Interstate Highway 75 near Perry, Georgia, south
of Macon. There, J.C., Wooden, Gunnells, and Larry Estes
tried unsuccessfully to back the trailer into Wooden’s barn.
At about 7:30 a.m. the next day, October 25, the four men
drove the van to an open field adjoining I-75 farther south,
and left it there for the night. After daybreak, J.C. and Estes
drove the van back to Wooden’s farm. With Wooden and
Gunnells, they unloaded the stolen meat and dairy products
into an old ice cream truck and a U-Haul van rented by J.C.
that day in Macon.
On October 26, Estes drove the U-Haul van to a grocery
store in Jeffersonville, Georgia, which was owned by Foster
and had been closed for about one year. There he met
Foster and Larry Hudson, a mechanic employed as
Gunnells’ “general flunky”. After Hudson, at Foster’s
request, turned on the store’s old freezers, the three men
began unloading the U-Haul van. At that point, a state
patrol or local police car pulled up outside the store. Foster
spoke to the officer, who soon left. Foster then told Estes
and Hudson that he did not want the meat and cheese at his
store, so they reloaded the van and drove to J.C.’s house in
Macon, where they were able to fit some of the goods into
an old chest-type freezer on J.C.’s back porch. The next
day Foster told Gunnells that a law enforcement officer had
caught him with the meat but that he, Foster, had “‘out-
talked him’’. T. 290. The remainder of the stolen meat,
butter, and cheese was sold to the owner of a supermarket in
on 4
a
25a
Charlotte, North Carolina, by Paul Moose, Jr., at the
request of Leon Averett.’
G. Stolen Forklift and Ditchwitch: Honor Among Thieves:
J. C. believed that he had been shortchanged by Rainey
and Burnett in that he paid for but did not receive a full trailer
"Averett, in prison in Texas when the RICO trial began, was brought
to Macon under a writ of habeas corpus ad testificandum but, for
reasons not reflect in the record, was never put on the stand by the
government. His involvement with J.C. in this and a later fencing
operation involving stolen shirts, described below, was established
solely through the testimony of Paul Moose, Jr. Other evidence at the
trial indicated an association between J.C. and Averett. In February,
1976, J.C. discussed his potential criminal liability with Joe Fuchs.
The conversation was surreptitiously recorded, with Fuchs’ consent,
and included the following exchanges:
FUCHS: The only thing I know is—well, that time we picked
up the meat with Avery [sic]. That was down there on Mulberry.
HAWKINS: They’ve got records of that. Me and you and
him, you know. T. 2117.
*_* *
FUCHS: I know we went [to the nursing homes] one time
because Leon was with us—
HAWKINS: What’s the name of that place—it’s on Mulberry
Street.
FUCHS: It’s on Mulberry Street and Leon was with us. He
wanted to fly but I thought we had too much stuff in the plane, too
much meat to carry it. That’s the only time I can remember.
HAWKINS: That’s the only time I’ve been around you—
FUCHS: And we either carried that to LaGrange or Lumber
City.
HAWKINS: I think it was LaGrange. T. 2119.
In May, 1976, in a surreptitiously recorded conversation with his
friend, Bob Day, J.C. stated: “I’ve got to go to Texas to see a boy out
there in prison. We got a letter from him Thursday,” T. 2235, and,
later, “I need to go over there this month to see Leon in Texas,
Texarkana”, T. 2238.
26a
load of meat and dairy products. He demanded and received
a partial refund. Instead of paying in cash, however, Rainey
and Burnett made good on their obligation by delivering to J.
C. a stolen forklift and ditchwitch. At about the same time in
November, 1973, Foster told J.C. that he needed a forklift at
one of his construction projects. In the presence of James
Gunnells, J. C. told Foster that he could save money by
buying the “hot” equipment, from him for $3,500. Foster
bought the two pieces of equipment, knowing they were
stolen. He got less than a bargain, however. The forklift
developed mechanical problems, and remained at the con-
struction site for only two months before Foster had it moved
to his backyard in Jeffersonville, where his children used it as
a springboard for their trampoline. The forklift remained at
Foster’s home for nine months until it was confiscated by the
Georgia Bureau of Investigation. *
H. Stolen “Career Club” Shirts:
On November 7, 1973, a trailer load of “Career Club”
shirts consigned to an interstate shipment and valued in
*Foster denied that he knew the forklift was stolen, explaining that
Gunnells told him that he rented it from the “Jones Equipment
Company” in Atlanta. For the entire time he possessed the forklift,
however, Foster admitted that he signed no lease and paid no rent. In
fact, he testified that ‘Mr. Jones”’ visited him once and called him on
several occasions to complain angrily that he had received no rent,
Foster told “‘Mr. Jones” that he would make no payments until he was
reimbursed for repairs he had to make on the forklift. Foster insisted
that he tried to contact “Mr. Jones” but that he could find no listing for
a “Jones Equipment Company” in Atlanta, and a letter that he mailed
to “Mr. Jones” at an address furnished by Gunnells was returned
unopened and stamped, ‘Addressee Unknown’. Although Foster
described “Mr. Jones” “as a pretty hefty fellow’, T. 2499, he must
have seemed pretty thin to the jury.
a=.
_—s
27a
excess of $56,000 was stolen from the Roadway Express
Terminal in Macon. The trailer, on which the name ‘‘Road-
way” was painted in tall, bold letters along each side, wound
up in an Atlanta warehouse built and owned by Foster.
The lessons of the stolen meat experience the month
before apparently were not lost on Foster. Two years earlier
he had entered into a business venture with Kenneth Lamar
Keyes, a glass installer, to construct a warehouse-type
building for Keyes to rent for use as a glass processing plant.
The building, located in Atlanta, was completed during the
summer of 1973 and had doors large enough for semi-trucks
and trailers to pass through. As of November, 1973, no
equipment had been installed. That month, Foster asked
Keyes if he could rent the building to someone for two or
three months, ostensibly to help defray interest payments on
the money borrowed to finance the building. Keyes con-
sented. A few days after he was contacted by Foster, Keyes,
along with his stepson, Kenneth Horace Johnson, witnessed
J. C. and two other men drive up to the warehouse, pry the
locks off the surrounding gate with a crowbar, and replace
them with new locks. Several days later Keyes and Johnson
looked inside the warehouse and found the 40 foot Roadway
trailer, Within a week the trailer was gone, a pile of U-Haul
blankets left in its stead.
Gunnells, by his account, was unwittingly drawn into the
stolen shirt episode by Foster. First, as a Christmas present,
Foster gave Gunnells approximately 25 of the stolen shirts.’
When Gunnells later learned that the shirts were stolen, he
returned all but one to J. C. and Recea Hawkins. The one
*Foster, who denied any involvement with the stolen shirts,
specifically denied that he gave Gunnells any shirts for Christmas in
1973. That year, he recalled, his Christmas present to Gunnells was a
ham. T. 2458.
28a
remaining shirt, which he turned over to the Bibb County
Police, was introduced into evidence in the instant case and
was identified as a part of the stolen shipment. Second,
Foster asked Gunnells to take some polaroid photographs of
the outside of his Atlanta warehouse. Gunnells travelled to
Atlanta with J. C. and Recea for this purpose. At the
warehouse, J. C. unlocked the gate and the office door,
showed Gunnells the trailer and its contents, and offered to
sell him shirts for one dollar apiece. As they were leaving the
warehouse, Gunnells noticed a police car parked across the
street but was told by J. C. not to worry. On his return to
Macon, Gunnells approached Foster to register his concern
over, what had happened in Atlanta. Foster explained that
“there wasn’t nothing to worry about, that he had a lease
drawn up showing that he had leased it to somebody. if
anything ever happened’’. T.307.
Like the meat and dairy products the month before, the
stolen shirts were eventually disposed of through Leon
Averett and Paul Moose, Jr. in Charlotte, North Carolina. In
connection with the sale of the shirts, Averett told Moose
that “‘they” had a warehouse in Atlanta big enough to handle
several tractor-trailers. Some of the shirts sold by Averett
and Moose were recovered and identified as part of the stolen
shipment.
I. O False Apothecaries!:
With the exception of Foster, all defendants were impli-
cated in a number of illegal drug transactions throughout the
period covered by the indictment. We list those transactions
chronologically.
1. 1971-72: Elliott Barters in Black Beauties: Early in
1971, Joe Fuchs, then a pharmacist in Macon, wished to
29a
have a screened enclosure built around his porch. According
to Fuchs, James Eliott suggested that Joe Breland could do
the work at a low price. He and Breland went to Fuchs’
house, where Elliott negotiated a deai, requesting payment in
amphetamine pills, popularly known as “black beauties’’.
Fuchs agreed, and the work was completed over the period of
a year, during which time Fuchs gave the pills to Elliott and
Breland in installments of 400. '®
2. 1972-73: Amphetamine Sales: In early 1972, shortly
after their counterfeit title transactions commenced, Robert
Delph began selling amphetamines to car thief Jim Green.
Green recalled approximately six occasions on which he
purchased 1,000 pills from Delph for $150. Kenneth Boyd,
also a member of the car theft ring, accompanied Green to
Delph’s house during the first transaction, and later became
a steady customer. For a period of eight months beginning in
the summer of 1972, Boyd bought somewhere between
1,000 and 10,000 pills from Delph at two week intervals.
Boyd also purchased amphetamines from defendant Taylor
in similar quantities at one month intervals for about one
year, beginning in the summer of 1972. According to Boyd,
both Delph and Taylor on several occasions identified their
source of pills as J. C. Hawkins. Knowing that the pills
supplied to him were not pharmaceutical, Boyd was con-
‘While we must assume that the jury credited Fuchs’ testimony,
Elliott denied any involvement with the work done on Fuchs’ porch and
swore that he never received any “black Beauties” on this or on an
earlier occasion described by Fuchs. Around the time that Breland
began the work on the porch, Elliott recalled that Fuchs gave him an
envelope stapled shut and asked that he deliver it to Joe Breland; he did
not know the contents of the envelope. Breland, who admitted receiving
pills from Fuchs in exchange for the work, testified that Elliott was not
involved in negotiating the porch deal and that the work on Fuchs’
porch took no more than two days to complete.
30a
cerned about their source because uniformity of quality was
an important factor in their resale value. During one
conversation, Boyd pressed Delph for details about his
source of pills. Delph, who had been drinking, eventually
stated that “‘he had a truck that he was running for J. C. and
that they was partners in the deal or some kind of operation or
setup”. T.1275-76.
3. Winter 1973: The Jamaican Conspiracy: In Novem-
ber 1972, J. C. approached his friend Harry Randall in
Macon about purchasing marihuana and amphetamines in
Jamaica. Randall at the time owned a car rental business in
Kingston, Jamaica. He contacted his Kingston associate,
Dillon Barnes. Barnes flew to Macon where he, J. C. and
Randall, after protracted negotiations, reached an agreement
as to their general plan: Barnes would return to Kingston to
set up the purchase of 300 pounds of marihuana and 200
pounds of amphetamine powder, Randall would then fly
down to make the purchase and arrange for transportation to
the United STates; J. C. would pay for and distribute the
drugs. By coincidence, during this period, J. C. and James
Gunnells were interested in purchasing a piece of property in
Macon owned by the Tweedles, a couple who lived in
Jamaica. When Randall finally flew to Jamaica in January,
1973, to purchase the drugs, J. C. asked him to contact the
Tweedles to negotiate the sale of their Macon property. J. C.
arranged for Randall’s trip to be paid for by Gunnells, who
knew nothing of the drug conspiracy. Randall travelled to
Jamaica, set up the deal and wired home for $1,500, which
was sent by Western Union but never received by Randall.
The drug deal fell through when Randall learned that the pilot
he had recruited to fly the illicit goods back to Macon was an
agent for the Drug Enforcement Administration.
palates iiscteaniatis
ee ae ae
3la
4. Spring 1973: The Canadian Conspiracy: During the
spring of 1973, Delph and Taylor met with James Green to
discuss a plan to bring large quantities of amphetamine
powder and MDA into the United States from Canada.
Delph and Taylor stated that they planned to travel to
Canada where they knew a chemist who could supply the
drugs, and asked Green to assist them in selling whatever
they were able to bring back. Soon thereafter, Delph and
Taylor drove to Canada and returned with powdered am-
phetamine and MDA which they sold to Green for $125 per
ounce and which Green resold to a single individual for $150
per ounce.
5. Fall 1973: The Mexican Conspiracy: In late October
or early November, 1973, William Maxwell Martin, who
was peripherally involved in the car theft ring, was intro-
duced to Taylor by Billy Royce Jackson, a member of the
ring. After Jackson arranged to purchase a counterfeit —
certificate of title from Taylor, Martin asked Taylor if he
would be interested in buying several tons of marihuana.
Taylor stated that marihuana required too much space in
transportation and asked if Martin could obtain heroin or
cocaine, noting that others with whom he was involved “had
just got through purchasing an airplane for $102,000 to bring
heroin to this country”. T. 1196. Martin and Jackson,
already planning to go to Mexico in search of marihuana,
agreed to look for heroin and cocaine for Taylor. The two
never reached Mexico, however; they were arrested en route
in Laredo, Texas, on Dyer Act charges of transporting a
stolen vehicle across state lines. After his arrest, Martin
agreed to cooperate with the Drug Enforcement Agency.
From his hotel room in Laredo and in the presence of DEA
agents, Martin called Taylor and stated that he was out of jail
32a
and in Mexico and that he could put a deal together as
discussed. According to Martin, Taylor “‘said that he was
hoping that we could, that he wanted to do some checking,
and for me to get back with him later’. T. 1195. Martin,
however, was unable to contact Taylor again. The single
telephone call from Martin’s hotel room went unrecorded
due to a malfunction in the DEA’s recording equipment.
6. 1973: Miscellaneous Drug Transactions: In addition
to the major drug deals, successful and unsuccessful, of
1973, the evidence disclosed several minor, isolated drug
transactions that year. In the spring of 1973, Joe Breland
purchased a bottle of “speed” from J. C. at one of Foster’s
construction sites. At about the same time, J. C. invited Joe
Fuchs to his house to rummage through his stash of illegally
obtained prescription drugs. Fuchs noted that most of the
drugs were “normal prescription type medication” with no
street value and thus of no interest to him. J. C. explained that
“Scooter” Herring had recently been through those drugs
and had picked out what he wanted, so that only a few
controlled drugs were left. '' Fuchs found four to six bottles of
Ritalin, a Schedule II controlled substance, which he bought
from J. C. for $250. Additionally, Billy Royce Jackson
recalled that sometime in 1973 he was given about 25
amphetamine pills by Delph.
7. 1974: MDA: Early in 1974, J. C. approached Larry
''We recently reversed Herring’s conviction on several federal drug
charges on grounds of prejudicial publicity at a crucial point in the trial.
United States v. Herring, 568 F.2d 1099 (Sth Cir. 1978) [1978].
Herring was at one time road manager for the popular rock musician
Gregg Allman. The principal witnesses against Herring were Allman
and Joe Fuchs, an unindicted co-conspirator in Herring’s case as well
as in the instant case.
33a
Estes and offered to sell him MDA, explaining that he had
two pounds on hand and needed some money. Estes
promised to check at a local nightclub to see if he could find a
buyer. Within a week, Estes called J. C. and stated that he
had found someone interested in purchasing MDA. At J.
C.’s suggestion, Estes went to Recea’s motorcycle shop in
Macon and told Recea that he could sell one ounce of MDA
for $350. Recea told Estes to walk down the road for a while
and that when he returned, the MDA would be under the
front seat of a particular car parked outside the shop. After
picking up the MDA in this manner, Estes returned to his
apartment, where his potential buyer sampled the product
and paid $350 for the tiny plastic bag of grayish-brown
powder. Estes then delivered the money to Recea. Over the
next two weeks, Estes made two more sales for Recea using
the same procedure. On April 27, 1974, Macon police
raided the apartment of Recea’s estranged wife, Patricia
Thomas, and seized approximately 364 grams of 245
trimethoxyamphetamine, a controlled substance similar to
MDA. Although keys to the apartment were possessed by
Recea Hawkins, Ricky Strozier and Patricia Thomas, the
latter two denied any knowledge of the seized drugs. '?
8. 1976: Marihuana: In May, 1976, J. C. met with Bob
Day, a pilot and an old friend. With Day’s consent, the
meeting was surreptitiously recorded by agents of the
Georgia Bureau of Investigation, and relevant portions of the
tape were admitted into evidence at the trial. At one point in
this conversation, J. C. admitted to Day that three to five
weeks earlier, ““we got 200 pounds” of “‘goddamn, jamup
In the same raid, several of the stolen “Career Club” shirts were
also seized. Strozier and Thomas denied that the shirts were theirs, thus
permitting the jury to infer that they belonged to Recea.
34a
good”’ marihuana. Soon thereafter, J. C.’s narrative state-
ment continued, J. C. and his unnamed compatriots pur-
chased but returned another 200 pounds which were not as
good. They then purchased 300 pounds of marihuana, which
they sold within two weeks although it too was of low quality.
T. 2210.
9. 1976: The Hawkins-Day Conspiracy: In April, 1976,
J. C. met with Day and Kevin Sapp at Day’s home in
Dawson, Georgia, to discuss two criminal schemes, one of
which involved a marihuana deal J. C. claimed to be working
on in “‘New Mexico”’. At the meeting, J. C. offered Day $10
per pound to fly a minimum of 500 pounds of marihuana
from “‘New Mexico” to Georgia. The next month, Day,
wired for sound, visited J. C. in Macon to discuss their plans.
J. C. raised the possibility of importing a large quantity of
marihuana from Colombia, South America, by ship because
“the quality right now in Mexico is lousy’’. If Day knew of a
ship that was available, J. C. stated, he had someone willing
to invest over a million dollars. As for airplanes, ‘I done
blowed three or four years’ salary in the last three or four
years fucking with them airplanes. Almost everyone that’s
come from down there has got caught, has got jumped”.
When Day described a shrimp boat for sale, J. C. replied that
such a boat “‘is not big enough to haul what I’m talking about ,
50,000 pounds”.
J. Epilogue: The Bravo Plot:
Months after he knew that a federal grand jury was hot on
his trail, J. C. continued to devise criminal money-making
schemes, as his tape recorded conversation with Bob Day
reveals. In addition to marihuana deals, J. C. planned to
burglarize the Triangle Chemical Company in Macon and
5 nla cat “ —
os ee ee ee eee
35a
steal approximately 2,000 five gallon cans of ‘“‘Bravo’’, a
fungicide used to dust crops during the summer months. In
April, 1976, J. C. solicited the help of Day and Kevin Sapp
in this endeavor, the details of which were discussed the
following month in the taped conversation between J. C. and
Day. J. C. stated that he already had the trucks necessary to
carry the 60 pound chemical drums—a tractor-trailer and
two “‘six-wheelers”. He then outlined a plan to assure the
eventual buyer would be unaware of J. C.’s and Kevin
Sapp’s involvement and that Sapp, apparently an employee
of Triangle, would be unaware of the identity of the buyer.
J. C.’s modus operandi, as reflected in this arrangement,
was based on the mistaken notion that a person could not be
convicted on the basis of only one co-conspirator’s
testimony.'? J. C. thus assumed—and often advised
others—that he would be sheltered from liability if he could
deal with only one other person at each phase of a particular
transaction. His explanation to Day is illustrative:
HAWKINS: They won’t never be more than two
people together on your end of it. So you and the guy
you deal, you and me.
DAY: I’d just rather deal with you...
HAWKINS: You go deal with your man by yourself
and you tell him what you want him to know.
DAY: That’s right. You just don’t tell Calvin [sic] that
I was nowhere around or nothing.
HAWKINS: Nav, but he’ll know in his own mind that
“Evidently, J.C. was unfamiliar with a line of cases in this Circuit
holding that “the uncorroborated testimony of an accomplice is
sufficient to support a conviction in the federal courts if it is not on its
face incredible or otherwise insubstantial”. United States v. Iacovetti,
466 F.2d 1147, 1153 (Sth Cir. 1972), cert. denied, 410 U.S. 908, 93
S.Ct. 963, 35 L.Ed.2d 270.
36a
you—
DAY: I think he will too, but—
HAWKINS: That don’t mean nothing. Even in court if
he said you was, that’s nothing. Your word’s as good as
his. T. 2234.
As for his own liability, J. C. told Day that the buyer “‘can
pay you direct and you can pay me, and you'll never see
anybody else. That’s my word against yours . . . That don’t
even bother me . . . One on one ain’t worth a shit’”."
T. 2226.
Il. THE INDICTMENT
The eight count indictment in this case was returned on
July 29, 1976, superseding an almost identical indictment
filed on June 10, 1976. The indictment charged the
following:
COUNT ONE: Conspiracy to Violate RICO: All six
defendants, James Alford Elliott, Jr., Robert Ervin Delph,
Jr., William Marion Foster, Recea Howell Hawkins, John
Clayburn Hawkins, Jr. a/k/a J. C., and John Frank Taylor,
'4J.C.’s lecture to Joe Fuchs about the ‘‘one on one”’ principle is
worth recording for the insight it provides into the rationale apparently
behind most of the enterprise’s activities:
HAWKINS: That’s one against one and which one wins? If
they don’t have the meat—so what’s the deal? You’re as good as
he is or better. He said you did, you say you didn’t. Who’s going
to believe what? You’ll never be indicted on that shit. I been down
them roads twenty-five years. It don’t bother me—if a guy said
well, J.C. sold me or stole or sold or I saw or shit—that’s unreal. If
they catch me in the act or catch me with the goods or two or three
guys tell them they bought it or seen it or I had it, then that’s a
different story. That’s the story that will go down in the book, in
the court and it’ll convict your ass. T. 2123.
37a
were named in Count One as having conspired, from
December 3, 1970, until the filing of the indictment, with
each other, with 37 unindicted co-conspirators, and with
“others to the grand jury known and unknown”’ to violate a
substantive provision of the RICO statute, 18 U.S.C.
§ 1962(c), in violation of 18 U.S.C. § 1962(d).'5 The
essence of the conspiracy charge was that the defendants
agreed to participate, directly and indirectly, in the conduct
of the affairs of an “enterprise’’ whose purposes were to
commit thefts, “fence” stolen property, illegally traffic in
narcotics, obstruct justice, and engage in “other criminal
activities”. The indictment listed 25 overt acts, beginning
with the burning of the Community Convalescent Nursing
Home in 1970 and culminating with J. C. Hawkins’
marihuana transactions in the spring of 1976.
COUNT TWO: The Substantive RICO Charge: J. C.
and Recea Hawkins only were charged with a substantive
violation of the RICO statute, 18 U.S.C. § 1962(c), in that
they conducted and participated, directly and indirectly, in
the conduct of the affairs of an enterprise through a pattern
of racketeering activity. The crimes alleged to satisfy the
Statutory requirements for “a pattern of racketeering
activity” included those charged in Counts Three through
Six and Count Eight, as well.as the possession and sale of
Ritalin and the distribution of MDA on three occasions, all
in violation of 21 U.S.C. § 841, the murder of Jimmy
Reeves, in violation of Ga. Code Ann. § 26-1101, and the
burning of the Community Convalescent Nursing Home, in
violation of Ga. Code Ann. § 26-1401.
"The defendants were not charged under the general conspiracy
statute, 18 U.S.C. §371, which carries a maximum penalty less severe
than does the specific RICO conspiracy provision.
38a
COUNT THREE: J. C. Hawkins was charged with
violating 18 U.S.C. § § 659 and 2 in that he possessed and
concealed with the intent to convert to his own use a stolen
interstate shipment of Hormel meat valued in excess of
$100.
COUNT FOUR: J. C. Hawkins and James Elliott were
charged with violating 18 U.S.C. § § 1503 and 2 in that
they corruptly endeavored to obstruct justice by “hanging”
the jury in the trial of Rudolph Flanders for the possession
and concealment of the stolen Hormel meat.
COUNT FIVE: J. C. Hawkins and William Marion
Foster were charged with violating 18 U.S.C. § § 659 and
2 in that they possessed and concealed with the intent to
convert to their own use a stolen interstate shipment of
Swift Premium meat and dairy products valued in excess of
$100.
COUNT SIX: J. C. Hawkins, Recea Hawkins and
Foster were charged with violating 18 U.S.C. § §659 and 2
in that they possessed and concealed with the intent to
convert to their own use a stolen interstate shipment of
“Career Club” shirts valued in excess of $100.
COUNT SEVEN: James Elliott was charged with
violating 18 U.S.C. § 1503 in that he corruptly endeavored
to obstruct justice by encouraging Joe Fuchs to lie to a
federal grand jury “investigating theft from interstate
shipment of Swift Premium boxed beef’’. The indictment’s
reference to ‘Swift’ was erroneous; the boxed beef
discussed by Elliott and Fuchs had been produced by
Hormel.
COUNT EIGHT: J. C. Hawkins was charged with
violating 18 U.S.C. § 2315 in that he knowingly received
and disposed of a counterfeit security, a Georgia State
Certificate of Title, moving in interstate commerce.
39a
At the close of the government’s case, the trial judge
directed a verdict of acquittal on Count Four in favor of
James Elliott. The jury acquitted J. C. Hawkins on Count
Four and Elliott on Count Seven, thus eliminating all
substantive obstruction of justice charges from the case. All
remaining defendants were found guilty as charged by the
jury under Counts One, Two, Three, Five, Six, and Eight,
were adjudged guilty, and received the following sentences:
J. C. Hawkins, 80 years imprisonment; Recea Hawkins, 50
years imprisonment; Delph and Taylor, each 10 years, with
parole eligibility in 24 months; Foster, one year imprison-
ment, five years probation; James Elliott, five years
probation.
In this appeal, the defendants have raised a myriad of
issues, all of which we have considered at length. Some are
too frivolous to warrant discussion. Others present serious
and novel legal questions that we attempt to address and
resolve by the discussion which follows.
Ill. THE SUBSTANTIVE RICO VIOLATION
J. C. and Recea Hawkins contend that their acts, while
arguably violative of other criminal statutes, are not
proscribed by the substantive RICO provision under which
they were charged, 18 U.S.C. § 1962(c), in that they were
not committed in furtherance of the affairs of an
“enterprise” as required by the Act. At best, they say, the
facts disclosed that two brothers confederated to commit a
few, isolated criminal acts over a period of six years.
Neither the facts nor the law support this contention.
Because this prosecution was based on a novel and
recently enacted criminal statute, we must, at the outset,
determine exactly what that statute denounces as illegal, as
relevant to this case. Section 1962(c) provides:
40a
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 com-
merce, 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.
This section must be read in the context of the statutory
definitions of its key terms. “Enterprise”, as used in the
Act, “includes any individual, partnership, corporation,
association, or other legal entity, and any union or group of
individuals associated in fact although not a legal entity”’.
18 U.S.C. § 1961(4). As relevant to this case, a “pattern
of racketeering activity” simply requires at least two acts of
“racketeering activity” committed within ten years of each
other. 18 U.S.C. § 1961(5). “Racketeering activity”
includes three broad categories of crimes: (A) any of
several specified “‘act[s] or threat[s] . . . chargeable under
State law and punishable by imprisonment for more than
one year’’, including, as relevant here, murder and arson,
(B) any act which is indictable under any of several
specified sections of Title 18, U.S.C., including, as relevant
here, § 659 (felonious theft from interstate shipment),
§ 1503 (obstruction of justice), and § 2315 (interstate
shipment of stolen or counterfeit securities) or (C) federal
offenses involving narcotics or other dangerous drugs. 18
U.S.C. § 1961(1).
Reduced to its bare essentials, the charge against J. C.
and Recea may be restated as follows:'®
‘To keep our restatement of the charge as simple as possible, we
have omitted the interstate commerce element necessary to make out a
RICO violation. With multiple thefts from interstate commerce, trans-
portation of stolen cars and counterfeit titles across numerous state
lines, and sales of stolen goods in several states, there is no question
that this case involves an effect on interstate commerce more than
adequate to satisfy RICO requirements.
4la
Being associated with a group of individuals who were
associated in fact, J. C. and Recea Hawkins each
directly and indirectly participated in the group’s
affairs through the commission of two or more
predicate crimes.
The gist of J. C.’s and Recea’s objection to their conviction
on Count Two is that there was no group of individuals
associated in fact—no enterprise—in whose affairs they
could have participated, directly or indirectly. We disagree.
[2,3] In United States v. Hawes, 529 F.2d 472, 479
(Sth Cir. 1976), we noted that ‘ongress gave the term
‘enterprise’ a very broad meaning”’. On its face and in light
of its legislative history, the Act clearly encompasses “not
only legitimate businesses but also enterprises which are
from their inception organized for illicit purposes”. United
''The dispute over whether the Act reaches illegitimate businesses
stems from dicta in Janelli v. United States, 420 U.S. 770, 95 S.Ct.
1284, 43 L.Ed.2d 616 (1975). Although that case did not involve a
prosecution under the RICO statute, the Court, in footnote 19, noted:
“[RICO] seeks to prevent the infiltration of legitimate business
operations affecting interstate commerce by individuals who have
obtained investment capital from a pattern of racketeering activity”. As
we explained in United States v. McLaurin, supra, 557 F.2d at 1073,
there is no indication that this dicta was intended to describe fully the
ambit of the Act’s coverage. Furthermore, the Act on its “ace draws no
distinction between legitimate and illegitimate businesses, and the
legislative history supports the broad application inherent in the words
of the statute. See “Congressional Statement of Findings and Purpose”’,
Pub.L.No.91-452, §1, 84 Stat. 922 (1970); United States v. Brown,
555 F.2d 407, 415-16 (Sth Cir. 1977). “[W]e do not believe that it is
normally a proper judicial function to try to cabin in the plain language
of a statute, even a criminal statute, by limiting its coverage to the
primary activity Congress had in mind when it acted”. United States v.
Mandel, 415 F.Supp. 997, 1019 (D.Md.1976), quoting United States
v. LeFaivre, 507 F.2d 1288, 1295 (4th Cir. 1974), cert. denied, 420
U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975).
42a
States v. McLaurin, 557 F.2d 1064, 1073 (Sth Cir.
1977).'’ Similarly, we are persuaded that “enterprise”
includes an informal, de facto association such as that
involved in this case. In defining “enterprise”, Congress
made clear that the statute extended beyond conventional
business organizations to reach “any... group of individ-
uals” whose association, however loose or informal,
furnishes a vehicle for the commission of two or more
predicate crimes. The statute demands only that there be
association “in fact” when it cannot be implied in law.
There is no distinction, for “enterprise” purposes, between
a duly formed corporation that elects officers and holds
annual meetings and an amoeba-like infra-structure that
controls a secret criminal network.
Here, the government proved beyond a reasonable doubt
the existence of an enterprise comprised of at least five of
the defendants. '* This enterprise can best be analogized to a
large business conglomerate. Metaphorically speaking, J.
C. Hawkins was the chairman of the board, functioning as
the chief executive officer and overseeing the operations of
many separate branches of the corporation. An executive
'*As we explain below, we hold that the evidence was insufficient to
tie James Elliott to the enterprise or to a conspiracy to violate the Act.
The number of persons making up an enterprise is irrelevant, however,
in that even a single individual may be considered an “enterprise”
under the statutory definition. 18 U.S.C. §1961(4). Thus, under the
facts of this case, we could view J.C. Hawkins as the enterprise and the
other defendants as persons merely “employed by or associated with”
the enterprise. 18 U.S.C. §1962(c). We treat the enterprise in this case
as a group of people in light of the government’s admission that its
“theory of the case from beginning to end has been that the ‘enterprise’
in this case was comprised of all six appellants as a group of individuals
associated in fact”. Brief of Appellee at 10. The indictment charged
only that each defendant was associated with the enterprise.
43a
committee in charge of the ‘“‘Counterfeit Title, Stolen Car,
and Amphetamine Sales Department’’ was comprised of J.
C., Delph, and Taylor, who supervised the operations of
lower level employees such as Farr, the printer, and Green,
Boyd, and Jackson, the car thieves. Another executive
committee, comprised of J. C., Recea and Foster,
controlled the ‘“Thefts From Interstate Commerce Depart-
ment”’, arranging the purchase, concealment, and distribu-
tion of such commodities as meat, dairy products, “‘Career
Club” shirts, and heavy construction equipment. An
offshoot of this department handled subsidiary activities,
such as murder and obstruction of justice, intended to
facilitate the smooth operation of its primary activities.
Each member of the conglomerate, with the exception of
Foster, was responsible for procuring and wholesaling
whatever narcotics could be obtained. The thread tying all
of these departments, activities, and individuals together
was the desire to make money. J. C. might have been
voicing the corporation’s motto when he told Bob Day, in
May, 1976, “‘if it ain’t a pretty damn good bit of money, I
ain’t a going to fuck with it”. T. 2229.
[4] A jury is entitled to infer the existence of an
enterprise on the basis of largely or wholly circumstantial
evidence. Like a criminal conspiracy, a RICO enterprise
cannot be expected to maintain a high profile in the
community. Its affairs are likely to be conducted in secrecy
and to involve a minimal amount of necessary contact
between participants. Thus, direct evidence of association
may be difficult to obtain; a jury should be permitted to
draw the natural inference arising from circumstantial
44a
evidence of association.*® In this case, persuasive circum-
stantial evidence of association was buttressed by direct
evidence tending to prove the existence of an enterprise.
According to Boyd, defendant Delph stated that “he had a
truck that he was running for J. C. and that they was
partners in the deal or some kind of operation or setup.”
T. 1275-76. William Martin described defendant Taylor’s
admission that he and others “had just gotten through
purchasing an airplane for $102,000 to bring heroin into
this country”, T. 1196, and J. C. told Day that he had
virtually bankrupted himself by spending money on
airplanes to import drugs. Leon Averett, in the course of
selling a trailer load of stolen shirts, stated that his
associates had a warehouse in Atlanta big enough to handle
several tractor-trailers.
[5] Additionally, although the target of the RICO statute
is not “sporadic activity’’,*® we find nothing in the Act
excluding from its ambit an enterprise engaged in
diversified activity. Indeed, Congress expressly stated that
the purpose of the Act was “to seek the eradication of
organized crime’, which it described as a “highly
sophisticated, diversified, and widespread activity that
annually drains billions of dollars from America’s economy
by unlawful conduct... .” Pub.L.91-452, §1, 84 Stat. 922
(1970) (emphasis added). To this end, it directed that
“(t]he provisions of this title shall be liberally construed to
‘In conspiracy cases, we allow the jury to infer agreement on the
basis of “the acts and conduct of the alleged conspirators themselves”.
United States v. Morado, 454 F.2d 167, 174 (Sth Cir. 1972). In this
case, it is apparent that the enterprise operated in a manner calculated
to minimize direct evidence of association. See notes 13 and 14, supra,
and accompanying text.
°S.Rep.91-617, 91st Cong., Ist Sess. at 158 (1969).
—— Sa ee. te
45a
effectuate its remedial purposes”. Id., § 904. While earlier
cases have considered enterprises engaged in only one type
of prohibited activity,*‘ a single enterprise engaged in
diversified activities fits comfortably within the proscrip-
tions of the statute and the dictates of common sense;
As in a firm with a real estate department and an
insurance department, the fact that partners bring in
two kinds of business on the basis of their different
skills and connections does not affect the fact that they
are partners in a more general business venture.
United States v. Mallah, 503 F.2d 971, 976 (2d Cir.
1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43
L.Ed.2d 671 (1975).*7 We would deny society the
protection intended by Congress were we to hold that the
Act does not reach those enterprises nefarious enough to
diversify their criminal activity.”°
*1See, e.g., United States v. McLaurin, 557 F.2d 1064 (Sth Cir.
1977) (prostitution ring); United States v. Brown, 555 F.2d 407 (5th
Cir. 1977) (solicitation and acceptance of bribes by members of police
department); United States v. Morris, 532 F.2d 436 (5th Cir. 1976)
(series of rigged card games).
“Although Mallah was a conspiracy, not a RICO case, we believe
that the business venture analogy is appropriate to help define a RICO
“enterprise”. See also United States v. Palermo, 410 F.2d 468 (7th
Cir. 1969), in which the Court found “one overall agreement to extort
money from Riley in any way possible” even though many different
means had been used.
**We note that at least two district courts have construed “a pattern
of racketeering activity”, as used in the Act, to require that the two or
more acts of “racketeering activity” be interrelated. United States v.
White, 386 F.Supp. 882, 883-84 (E.D.Wis.1974); United States v.
Stofsky, 409 F.Supp. 609, 614 (S.D.N.Y.1973). On its face, however,
the statute does not require such “‘interrelatedness”, and we can
perceive no reason for reading it into the statutory definition, 18 U.S.C.
§1961(5). “There is no constitutional principle that would prevent
(continued)
46a
[6] The evidence in this case demonstrated the
existence of an enterprise—a myriopod criminal network,
loosely connected but connected nonetheless. By commit-
ting arson, actively assisting a car theft ring, fencing
thousands of dollars worth of goods stolen from interstate
commerce, murdering a key witness, and dealing in
narcotics, J. C. and Recea Hawkins directly and indirectly
participated in the enterprise’s affairs through a pattern,
indeed a plethora, of racketeering activity. We affirm their
convictions on Count Two.
IV. THE RICO CONSPIRACY COUNT
All six defendants were convicted under 18 U.S.C.
§ 1962(d) of having conspired to violate a substantive
RICO provision, § 1962(c). In this appeal, all defendants,
with the exception of Foster, argue that while the
indictment alleged but one conspiracy, the government’s
evidence at trial proved the existence of several conspira-
cies, resulting in a variance which substantially prejudiced
(footnote continued from preceding page)
Congress from labeling the commission of two crimes within a specified
period of time and in the course of a particular type of enterprise a
‘pattern’ of activity, whether or not a sequence of two similar acts
amounts to a pattern as that term is ordinarily understood. Further,
Congress is constitutionally entitled to make such behavior an
independent criminal offense, punishable more severely than simply
twice the penalty for each constituent offense.”’ United States v. Field,
432 F.Supp. 55, 60-61 (S.D.N.Y.1977). We note also that the Act
does not criminalize either associating with an enterprise or engaging in
a pattern of racketeering activity standing alone. The gravamen of the
offense described in 18 U.S.C. §1962(c) is the conduct of an
enterprise’s affairs through a pattern of racketeering activity. Thus, the
Act does require a type of relatedness: the two or more predicate crimes
must be related to the affairs of the enterprise but need not otherwise be
related to each other.
Awake
47a
their rights and requires reversal, citing Kotteakos v.
United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed.
1557 (1946). Prior to the enactment of the RICO statute,
this argument would have been more persuasive. However,
as we explain below, RICO has displaced many of the legal
precepts traditionally applied to concerted criminal activity.
Its effect in this case is to free the government from the
strictures of the multiple conspiracy doctrine and to allow
the joint trial of many persons accused of diversified crimes.
A. Prior Law: Wheels and Chains
1. Kotteakos and the Wheel Conspiracy Rationale: The
Court in Kotteakos held that proof of multiple conspiracies
under an indictment alleging a single conspiracy constituted
a material variance requiring reversal where a defendant’s
substantial rights had been affected. At issue was “‘the right
not to be tried en masse for the conglomeration of distinct
and separate offenses committed by others’. 328 U.S. at
775, 66 S.Ct. at 1253. Kotteakos thus protects against the
““spill-over effect”, the transference of guilt from members
of one conspiracy to members of another. United States v.
Bertolotti, 529 F.2d 149, 156 (2d Cir. 1975).
The facts of Kotteakos have been summarized by this
court as follows:
In that case, one where the indictment charged but
one overall conspiracy, the government’s proof at trial,
by its own admission, showed that there were eight
separate conspiracies involving some thirty-two per-
sons. The key figure in the scheme, which involved the
obtaining of government loans by making fraudulent
representations, was a man named Brown, who was a
part of, and directed each of the eight conspiracies.
Brown was the only element common to the eight
48a
otherwise completely separate undertakings, no other
persons taking part in, nor having knowledge of the
other conspiracies. Though each of the conspiracies
had similar illegal objects, none depended upon, was
aided by, or had any interest in the success of the
others.
United States v. Perez, 489 F.2d 51, 60 (Sth Cir. 1973).
These facts led the Court to speak in terms of a “wheel
conspiracy’, in which one person, the ““hub”’ of the wheel,
was accused of conspiring with several others, the ““spokes”’
of the wheel. As we explained in United States v. Levine,
546 F.2d 658, 663 (Sth Cir. 1977):
For a [single] wheel conspiracy to exist those people
who form the wheel’s spokes must have been aware of
each other and must do something in furtherance of
some single, illegal enterprise. Otherwise the con-
spiracy lacks “the rim of the wheel to enclose the
spokes.”’ If there is not some interaction between those
conspirators who form the spokes of the wheel as to at
least one common illegal object, the “wheel’’ is
incomplete, and two conspiracies rather than one are
charged. [Citations omitted].
2. Blumenthal and the Chain Conspiracy Rationale:
The impact of Kotteakos was soon limited by the Court in
Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248,
92 L.Ed. 154 (1947), where the indictment charged a single
conspiracy to sell whiskey at prices above the ceiling set by
the Office of Price Administration. The owner of the
whiskey, through a series of middlemen, had devised an
intricate scheme to conceal the true amount he was
charging for the whiskey. Although some of the middlemen
had no contact with each other and did not know the
identity of the owner, they had to have realized that they
were indispensible cogs in the machinery through which this
<i c CR or, RT re
49a
illegal scheme was effectuated. The Court concluded that
“*in every practical sense the unique facts of this case reveal
a single conspiracy of which the several agreements were
essential and integral steps”. Id. at 559, 68 S.Ct. at 257.
Thus the “chain conspiracy” rationale evolved.
[7] The essential element of a chain conspiracy—
allowing persons unknown to each other and never before in
contact to be jointly prosecuted as co-conspirators—is
interdependence. The scheme which is the object of the
conspiracy must depend on the successful operation of each
link in the chain. “An individual associating himself with a
‘chain’ conspiracy knows that it has a ‘scope’ and that for its
success it requires an organization wider than may be
disclosed by his personal participation”. United States v.
Agueci, 310 F.2d 817, 827 (2d Cir. 1962), cert. denied,
372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963).
“Thus, in a ‘chain’ conspiracy prosecution, the requisite
element—knowledge of the existence of remote links—may
be inferred solely from the nature of the enterprise.”’ United
States v. Perez, supra, 489 F.2d at 59 n. 10.%
[8] 3. Limits of the Chain Conspiracy Rationale: The
rationale of Blumenthal applies only insofar as the alleged
agreement has “‘a common end or single unified purpose’’.
**Although Perez was a hybrid case, involving a wheel conspiracy in
which each spoke was itself a chain conspiracy, we applied the
interdependence rationale to find a single, overall conspiracy. Perez
involved a series of fraudulent insurance claims based on several staged
car accidents involving different groups of people, with minimal overlap
among the groups. The scheme could not be described as a “chain”’ in
the ordinary sense, but we noted that each participant had to realize that
the single fraudulent claim in which he or she was involved could not be
profitable unless it was one of multiple claims and that, in turn, multiple
claims could not be successfully made unless they involved many
different people and accidents in different locations across the state.
50a
United States v. Morado, 454 F.2d 167, 170-71 (Sth Cir.
1972); United States v. Lloyd, 425 F.2d 711 (Sth Cir.
1970). Generally, where the government has shown that a
number of otherwise diverse activities were performed to
achieve a single goal, courts have been willing to find a
single conspiracy.”* This ““common objective” test has most
often been used to connect the many facets of drug
importation and distribution schemes.” The rationale falls
apart, however, where the remote members of the alleged
conspiracy are not truly interdependent or where the
various activities sought to be tied together cannot
reasonably be said to constitute a unified scheme. In United
States v. Miley, 513 F.2d 1191, 1207 (2d Cir. 1975), for
example, the Second Circuit held that the value and
quantity of drugs sold by the defendant-suppliers was
insufficient to justify the inference that each knew his
supplies were only a small part of the drugs handled by a
larger operation. Similarly, in United States v. Bertolotti,
supra, 529 F.2d at 155, the same Court focused on an
alleged narcotics conspiracy that bore little resemblance to
“the orthodox business operation” found to exist in other
drug cases; many of the “narcotics transactions” involved
*5See, e.g., United States v. Morrow, 537 F.2d 120 (Sth Cir. 1976)
(conspiracy to distribute stolen and counterfeited securities); United
States v. Morado, 454 F.2d 167 (Sth Cir. 1972) (country-wide
conspiracy to steal an election); United States v. Nasse, 432 F.2d 1293
(7th Cir. 1970), cert. denied 401 U.S. 938, 91 S.Ct. 928, 28 L.Ed.2d
217 (1971) (conspiracy to steal and distribute cars); United States v.
Palermo, 410 F.2d 468 (7th Cir. 1969) (conspiracy to extort money).
See, e.g., United States v. Gonzalez, 491 F.2d 1202 (Sth Cir.
1974); United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), vacated
and remanded on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41
L.Ed.2d 209 (1974); Sigers v. United States, 321 F.2d 843 (Sth Cir.
1963).
S5la
amounted to “‘little more than simple cash thefts” in which
no drugs changed hands. The only factor that tied several
isolated transactions together, the Court noted, was the
presence of two of the defendants, Rossi and Coralluzzo, in
each. In effect, “[t]he scope of the operation was defined
only by Rossi’s resourcefulness in devising new methods to
make money”. Under these circumstances, the Court held
that the government had failed to prove the existence of a
single conspiracy.
Applying pre-RICO conspiracy concepts to the facts of
this case, we doubt that a single conspiracy could be
demonstrated. Foster had no contact with Delph and
Taylor during the life of the alleged conspiracy. Delph and
Taylor, so far as the evidence revealed, had no contact with
Recea Hawkins. The activities allegedly embraced by the
illegal agreement in this case are simply too diverse to be
tied together on the theory that participation in one activity
necessarily implied awareness of others. Even viewing the
“common objective’ of the conspiracy as the raising of
revenue through criminal activity, we could not say, for
example, that Foster, when he helped to conceal stolen
meat, had to know that J.C. was selling drugs to persons
unknown to Foster, or that Delph and Taylor, when they
furnished counterfeit titles to a car theft ring, had to know
that the man supplying the titles was also stealing goods out
of interstate commerce. The enterprise involved in this case
probably could not have been successfully prosecuted as a
single conspiracy under the general federal conspiracy
statute, 18 U.S.C. §371.”’
"Cf. Developments in the Law—Criminal Conspiracy, 72
Harv.L.Rev. 920, 929-33 (1959).
52a
B. RICO to the Rescue: The Enterprise Conspiracy
In enacting RICO, Congress found that “organized crime
continues to grow” in part “because the sanctions and
remedies available to the Government are unnecessarily
limited in scope and impact’’. Thus, one of the express
purposes of the Act was “to seek the eradication of
organized crime . . . by establishing new penal prohibitions,
and by providing enhanced sanctions and new remedies to
deal with the unlawful activities of those engaged in
organized crime’’. Pub.L.91-452, §1, 84 Stat. 922 (1970).
Against this background, we are convinced that, through
RICO, Congress intended to authorize the single prosecu-
tion of a multi-faceted, diversified conspiracy by replacing
the inadequate “wheel’’ and “‘chain”’ rationales with a new
statutory concept: the enterprise.
[9-11] To achieve this result, Congress acted against the
backdrop of hornbook conspiracy law. Under the general
federal conspiracy statute,
the precise nature and extent of the conspiracy must be
determined by reference to the agreement which
embraces and defines its objects. Whether the object of
a single agreement is to commit one or many crimes, it
is in either case that agreement which constitutes the
conspiracy which the statute punishes. Braverman y.
United States, 317 U.S. 49, 53, 63 S.Ct. 99, 102, 87
L.Ed. 23 (1942).
In the context of organized crime, this principle inhibited
mass prosecutions because a single agreement of “common
objective” cannot be inferred from the commission of highly
diverse crimes by apparently unrelated individuals. RICO
helps to eliminate this problem by creating a substantive
offense which ties together these diverse parties and crimes.
Thus, the object of a RICO conspiracy is to violate a
~~ ee ee et ee ae
53a
substantive RICO provision—here, to conduct or partici-
pate in the affairs of an enterprise through a pattern of
racketeering activity—and not merely to commit each of the
predicate crimes necessary to demonstrate a pattern of
racketeering activity. The gravamen of the conspiracy
charge in this case is not that each defendant agreed to
commit arson, to steal goods from interstate commerce, to
obstruct justice, and to sell narcotics; rather, it is that each
agreed to participate, directly and indirectly, in the affairs of
the enterprise by committing two or more predicate crimes.
Under the statute, it is irrelevant that each defendant
participated in the enterprise’s affairs through different,
even unrelated crimes, so long as we may reasonably infer
that each crime was intended to further the enterprise’s
affairs.** To find a single conspiracy, we still must look for
agreement on an overall objective. What Congress did was
» to define that objective through the substantive provisions
of the Act.
C. Constitutional Considerations
The “enterprise conspiracy” is a legislative innovation in
the realm of individual liability for group crime. We need to
consider whether this innovation comports with the
fundamental demand of due process that guilt remain
“individual and personal”. Kotteakos, supra, 328 U.S. at
772, 66 S.Ct. at 1252.
[12,13] The substantive proscriptions of the RICO
statute apply to insiders and outsiders—those merely
“associated with” an enterprise—who participate directly
_ Although some members of the conspiracy did not engage in every
transaction, such proof is not required to establish a conspiracy”.
United States v. Felts, 497 F.2d 80, 82 (Sth Cir. 1974).
54a
and indirectly in the enterprise’s affairs through a pattern of
racketeering activity. 18 U.S.C. §1962(c). Cf. United
States v. Forsythe, 560 F.2d 1127, 1135-36 (3d Cir.
1977). Thus, the RICO net is woven tightly to trap even the
smallest fish, those peripherally involved with the enter-
prise. This effect is enhanced by principles of conspiracy
law also developed to facilitate prosecution of conspirators
at all levels. Direct evidence of agreement is unnecessary:
“proof of such an agreement may rest upon inferences
drawn from relevant and competent circumstantial evi-
dence—ordinarily the acts and conduct of the alleged
conspirators themselves”. United States v. Morado, supra,
454 F.2d at 174. Additionally, once the conspiracy has
been established, the government need show only “‘slight
evidence” that a particular person was a member of the
conspiracy. Id. at 175. Of course, “‘a party to a conspiracy
need not know the identity, or even the number, of his
confederates’. United States v. Andolschek, 142 F.2d
503, 507 (2d Cir. 1944).
[14,15] Undeniably, then, under the RICO conspiracy
provision, remote associates of an enterprise may be
convicted as conspirators on the basis of purely circum-
stantial evidence. We cannot say, however, that this section
of the statute demands inferences that cannot reasonably be
drawn from circumstantial evidence or that it otherwise
offends the rule that guilt be individual and personal. The
Act does not authorize the individuals “be tried en masse
for the conglomeration of distinct and separate offenses
committed by others”. Kotteakos, supra. Nor does it
punish mere association with conspirators or knowledge of
illegal activity; its proscriptions are directed against
conduct, not status. United States v. Forsythe, supra, 560
F.2d at 1136. To be convicted as a member of an enterprise
55a
conspiracy, an individual, by his words or actions, must
have objectively manifested an agreement to participate,
directly or indirectly, in the affairs of an enterprise through
the commission of two or more predicate crimes. One
whose agreement with the members of an enterprise did not
include this vital element cannot be convicted under the
Act. Where, as here, the evidence establishes that each
defendant, over a period of years, committed several acts of
racketeering activity in furtherance of the enterprise’s
affairs, the inference of an agreement to do so is
unmistakable.
[16] It is well established that “[t]he government is not
required to prove that a conspirator had full knowledge of
all the details of the conspiracy; knowledge of the essential
nature of the plan is sufficient’. United States v.
Brasseaux, 509 F.2d 157, 160 n. 3 (Sth Cir. 1975). The
Supreme Court explained the policy behind this rule in
Blumenthal v. United States, supra, 332 U.S. at 556-57,
68 S.Ct. at 256:
For it is most often true, especially in broad schernes
calling for the aid of many persons, that after discovery
of enough to show clearly the essence of the scheme
and the identity of a number participating, the identity
and the fact of participation of others remain
undiscovered and undiscoverable. Secrecy and con-
cealment are essential features of successful con-
spiracy. The more completely they are achieved, the
more successful the crime. Hence the law rightly gives
room for allowing the conviction of those discovered
upon showing sufficiently the essential nature of the
plan and their connections with it, without requiring
evidence of knowledge of all its details or of the
participation of others. Otherwise the difficulties, not
only of discovery, but of certainty in proof and of
56a
correlating proof with pleading would become insuper-
able, and conspirators would go free by their very
ingenuity. [citation omitted]
In the instant case, it is clear that “the essential nature of
the plan”’ was to associate for the purpose of making money
from repeated criminal activity. Defendant Foster, for
example, hired J.C. Hawkins to commit arson, helped him
to conceal large quantities of meat and shirts stolen from
interstate commerce, and bought a stolen forklift from him.
It would be “‘a perversion of natural thought and of natural
language”’”® to deny that these facts give rise to the
inference that Foster knew he was directly involved in an
enterprise whose purpose was to profit from crime. As we
noted in United States v. Gonzalez, 491 F.2d 1202, 1206
(Sth Cir. 1974), “persons so associating and forming
organizations for furthering such illicit purposes do not
normally conceive of the association as engaging in one
unlawful transaction and then disbanding. Rather the nature
of such organizations seems to be an ongoing opera-
tion. ..’’ Foster also had to know that the enterprise was
bigger than his role in it, and that others unknown to him
were participating in its affairs. He may have been unaware
that others who had agreed to participate in the enterprise’s
affairs did so by selling drugs and murdering a key witness.
That, however, is irrelevant to his own liability, for he is
charged with agreeing to participate in the enterprise
through his own crimes, not with agreeing to commit each
of the crimes through which the overall affairs of the
*°United States v. Palermo, 410 F.2d 468, 470 (7th Cir. 1969).
57a
enterprise were conducted.*° We perceive in this no
significant extension of a co-conspirator’s liability. When a
person “embarks upon a criminal venture of indefinite
outline, he takes his chances as to its content and member-
ship, so be it that they fall within the common purposes as
he understands them”’. United States v. Andolschek, supra,
142 F.2d at 507.”!
See note 28 supra and accompanying text. These observations
apply with equal, if not greater, force to defendants Delph and Taylor
who, in addition to committing several acts of racketeering activity,
actually admitted to others that they were part of an ongoing enterprise.
Similarly, while Recea Hawkins’ acts hardly establish him as the
“brains” of the enterprise, his support for the enterprise’s affairs was
more than mere acquiescence or prese1ice; among his other crimes, he
committed murder for the enterprise.
*!Although the evidence here supports the inference that each remote
member of this enterprise knew he was a part of a much larger criminal
venture, we do not wish to imply that each “department” of the
enterprise was wholly independent of the others. A close look at the
modus operandi of the enterprise reveals a pattern of interdependence
which bolsters our conclusion that the functions of each “department”
directly contributed to the success of the overall operation. Many of the
enterprise’s practices wc.e analogous to those common in legitimate
businesses:
—JInvestment Capital: Most of the enterprise’s activities depended
upon the ready availability of investment capital, or “front money”, to
finance the purchase of stolen goods and narcotics for eventual resale at
a profit. In this sense, money brought in from one project could be used
to purchase goods in another unrelated project.
— ‘Good Will”: Part of the value of a business is the reputation it has
established in the community, its “‘good will’. The enterprise here
benefited from a negative form of “good will”. For example, Foster and
J.C. exploited their cooperation in the Sparta nursing home arson to
gain the confidence of James Gunnells when they needed his help in
concealing stolen meat; that earlier endeavor furnished proof that
Foster and J.C. could be rusted in criminal pursuits. Similarly, J.C.’s
threats of physical harm to many of those involved with the enterprise
helped to build a fear in the community which deterred potential
witnesses from going to the police. In this way, each successful criminal
, (continued)
58a
Our society disdains mass prosecutions because we
abhor the totalitarian doctrine of mass guilt. We neverthe-
less punish conspiracy as a distinct offense because we
recognize that collective action toward an illegal end
involves a greater risk to society than individual action
toward the same end.** That risk is greatly compounded
(footnote continued from preceding page)
act and each threat contributed to the success of the enterprise as a
whole.
—Arrangements to Limit Liability: Like most large business
organizations, this enterprise conducted its affairs in a manner
calculated to limit its liability for the acts of its agents. J.C. erroneously
believed that he could limit each person’s liability by keeping him as
isolated from the others as possible—in other words, that it would be
safer to have the affairs of the enterprise conducted through chains
composed of many persons playing limited roles than through a small
circle of individuals performing many functions. Where overlap was
unavoidable, the enterprise’s on-going operations depended upon each
member’s confidence that the others would remain silent. When J.C.
spoke to Joe Fuchs in January, 1976, for example, he expressed
confidence that the government could never make a case against his
enterprise. He was certain that James Elliott would not talk because
“James is scared”. He also assured Fuchs that he, J.C., and Scooter
Herring would say nothing; as for Recea, “that’s plum out of the
question, you can eliminate that”. Thus, he concluded, the only other
persons who might implicate Fuchs could provide only uncorroborated
accounts which would “‘mean nothing” in court. T. 2133-34.
Developments in the Law, supra, note 27, at 923-24. In Callahan
v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 325, 5 L.Ed.2d
312 (1961), the Supreme Court explained: “Concerted action both
increases the likelihood that the criminal object will be successfully
attained and decreases the probability that the individuals involved will
depart from their path of criminality. Group association for criminal
purposes often, if not normally, makes possible the attainment of ends
more complex than those which one criminal could accomplish...
Combination in crime [also] makes more likely the commission of
crimes unrelated to the original purpose for which the group was
formed”’. See also, United States v. Rabinowich, 238 U.S. 78, 88, 35
S.Ct. 682, 684, 59 L.Ed. 1211 (1915).
59a
when the conspirators contemplate not a single crime but a
career of crime. “There are times when of necessity,
because of the nature and'scope of the particular federation,
large numbers of persons taking part must be tried together
or perhaps not at all... . When many conspire, they invite
mass trial by their conduct”. Kotteakos, supra, 328 U.S. at
773, 66 S.Ct. at 1252.
[17,18] We do not lightly dismiss the fact that under this
statute four defendants who did not commit murder have
been forced to stand trial jointly with, and as confederates
of, two others who did. Prejudice inheres in such a trial;
great Neptune’s ocean could not purge its taint.*? But the
Constitution does not guarantee a trial free from the
prejudice that inevitably accompanies any charge of
heinous group crime; it demands only that the potential for
transference of guilt be minimized to the extent possible
under the circumstances in order “to individualize each
defendant in his relation to the mass’’. Kotteakos, supra,
328 U.S. at 773, 66 S.Ct. at 1252. The RICO statute does
not offend this principle. Congress, in a proper exercise of
its legislative power, has decided that murder, like thefts
from interstate commerce and the counterfeiting of
securities, qualifies as racketeering activity. This, of course,
ups the ante for RICO violators who personally would not
contemplate taking a human life. Whether there is a moral
imbalance in the equation of thieves and counterfeiters with
murderers is a question whose answer lies in the halls of
Congress, not in the judicial conscience.
D. Other Issues Related to the Conspiracy Count
1. The Court’s Charge: All defendants, with the
> Cf. Shakespeare, Macbeth, Act III, Scene I.
60a
exception of Foster, allege that the trial court committed
reversible error in failing to instruct the jury ou the conse-
quences of finding multiple conspiracies and in improperly
charging that “you must find” a single conspiracy.
Objections to the court’s charge were timely made. T.
2738, 2745. We hold that these assignments of-error are
without merit.
[19] Some cases have held that an instruction informing
the jury that it could find the defendants guilty on the basis
of multiple conspiracies helps to minimize the danger of
transferring guilt. See, e.g., United States v. Varelli, 407
F.2d 735 (7th Cir. 1969). Such an instruction is necessary
only when the indictment charges a single conspiracy and,
at trial, “‘the possibility of a variance appears’’. Jd. at 746.
Here, there was no variance. The court had no duty to
instruct on multiple conspiracies.
[20] As appellants point out, the trial court gave the
following instruction on the single conspiracy question:
Now I point out to you that this indictment alleges but
one conspiracy. You can find only the existence of one
conspiracy, and you must find that the defendants were
each a member of the same conspiracy. We are talking
about one conspiracy. T. 2728-29.
Read out of context, this passage seems to instruct the jury
that it must find, as a matter of law, that each defendant was
a member of a single conspiracy. “It is elementary,
however, that the correctness of a charge is measured not
by an isolated remark but by the charge as a whole”. United
States v. Rouse, 452 F.2d 311, 314 (5th Cir. 1971).
Reading the charge in this case as a whole, it is clear that
the trial judge did not usurp the jury’s function. At several
points throughout the charge, the judge used language to the
effect, “in order to find the defendants guilty, you must
6la
find....” Often, however, the judge omitted those
prefatory words and stated simply, “you must find... .”’
The contested conspiracy instruction came at the end of the
court’s charge, shortly after the judge, in summation, stated,
“*So it is that there are four essential elements that you must
find”. Then, eight times in three paragraphs, the judge
instructed the jury as to what it “must find”. The charge
was not a model of precision. Nevertheless, we are satisfied
that the jury understood the words “‘you must find”’ in the
context intended by the trial judge and made apparent by
the charge in its entirety.
2. Sufficiency of the Evidence:
[21] (a) As to William Foster. Although the only issue
raised by defendant Foster is the sufficiency of the evidence
against him, we find this contention to be without merit and
undeserving of protracted discussion. As we read Foster’s
brief, his arguments address the credibility, not the
sufficiency of the evidence. Decisions regarding credibility
are for the jury and are not to be made by an appellate
court. United States v. Grimm, 568 F.2d 1136, 1138 (Sth
Cir. 1978) [1978]; Walker v. United States, 301 F.2d 94
(Sth Cir. 1972).
(b) As to James Elliott: The evidence relevant to James
Elliott as we view the record, was not sufficient to permit
the jury to conclude that he conspired with the other five
defendants to violate the RICO statute. Accordingly, his
conviction under Count One must be reversed.
We recognize “that once a conspiracy is shown to exist,
slight evidence is all that is required to connect a particular
defendant with the conspiracy”. United States v. Prince,
515 F.2d 564, 567 (Sth Cir. 1975); United States v.
Reynolds, 511 F.2d 603, 607 (Sth Cir. 1975).
62a
The proof, however, must be individual and personal
and the government must prove beyond a reasonable
doubt that each member of the conspiracy had the
deliberate, knowing, and specific intent to join the
conspiracy. Mere association with conspirators or
knowledge of the illegal activity is not sufficient.
United States v. Falcone, 1940, 311 U.S. 205, 210-
11, 61 S.Ct. 204, 85 L.Ed. 128; United States v.
Miller, 5 Cir., 1974, 500 F.2d 751, 764; United
States v. Morado, 5 Cir., 1972, 454 F.2d 167, 175;
Roberts v. United States, 5 Cir., 1969, 416 F.2d
1216, 1220; Causey v. United States, 5 Cir., 1965,
352 F.2d 203, 206.
Prince, supra, 515 F.2d at 567.
[22] Where the government, as here, relies mainly upon
circumstantial evidence to establish a defendant’s guilt, we
test the sufficiency of the evidence by asking whether the
jury might reasonably have concluded that the evidence
fails to exclude every reasonable hypothesis but that of
guilt. Roberts v. United States, 416 F.2d 1216, 1220 (Sth
Cir. 1969). Cf. United States v. White, 569 F.2d 263 (Sth
Cir. 1978) [1978] for alternate statements of the test.
[23] Viewed in a light most favorable to the government,
the evidence against Elliott proved the following:
(1) Early in the spring of 1971, Joe Fuchs gave Elliott a
bottle of 500 amphetamine capsules without a prescription.
(2) Shortly thereafter, Elliott negotiated a deal with
Fuchs for Joe Breland to build an enclosed porch and for
Fuchs to repay Elliott and Breland with amphetamine pills.
During the next year, Fuchs delivered the pills in
installments of 400. .
(3) In April, 1972, Elliott, apparently as a favor for J.C.,
either sold or gave to Fuchs a 50 pound piece of stolen
Hormel meat.
63a
(4) In May, 1973, Elliott, serving as a juror in the trial of
Rudolph Flanders for possession of meat from the same
stolen equipment, held out for acquittal, causing a mistrial.
No evidence was presented that Elliott had been contacted
in advance about how he would vote in the Flanders case,
although J.C. had told others that he felt Elliott would
cooperate.
(5) In January, 1976, Elliott encouraged Fuchs to lie to
a federal grand jury about how he acquired the stolen meat
given to him by Elliott in 1972.
This evidence could not be taken to support, to the
exclusion of all other reasonable hypotheses, a conclusion
by the jury that Elliott agreed to participate, directly or
indirectly, in the affairs of an enterprise through a pattern of
racketeering activity. . best, this evidence discloses that
Elliott used a close friend, Joe Fuchs, as a personal source
of amphetamines and that he became peripherally involved
in a stolen meat deal, an involvement he later attempted to
conceal. The government failed to prove that Elliott’s
amphetamine transactions with Fuchs were in any way
connected with the affairs of the enterprise. The Hormel
meat, on the other hand, undeniably was acquired as a
result of enterprise activity, but Elliott’s cooperation with
J.C. Hawkins in disposing of a small portion of the meat is
insufficient to prove beyond a reasonable doubt that Elliott
knowingly and intentionally joined the broad conspiracy to
violate RICO. Elliott’s acts are equally consistent with the
hypothesis that he conspired with J.C. anc Fuchs for the
limited purpose of aiding in the distribution of stolen meat,
an offense with which he was not charged in this case.
Under this hypothesis, Elliott agreed to participate in the
affairs of the enterprise, but not through a pattern of
racketeering activity, hence, not in violation of the Act.
64a
Similarly, Elliott’s two subsequent attempts to cover up the
facts in the Hormel meat case are subject to two interpreta-
tions: (1) as possible overt acts in furtherance of an
agreement to participate in the enterprise’s affairs through a
pattern of racketeering activity, or (2) as efforts at conceal-
ment undertaken after the object of his more limited
conspiracy with J.C. and Fuchs had been accomplished, on
the theory that “every conspiracy will inevitably be
followed by actions taken to cover the conspirators’ traces’’.
Grunewald v. United States, 353 U.S. 391, 402, 77 S.Ct.
963, 972, 1 L.Ed.2d 931 (1957). To allow these
predictable acts of concealment to be construed as
independent evidence that Elliott agreed to conduct a
pattern of racketeering activity would unjustifiably broaden
the already pervasive scope of the RICO statute. We hold,
then, that the more reasonable conclusion dictated by these
facts is that, while Elliott may have conspired to distribute
stolen meat, the jury could not reasonably conclude that he
conspired to violate RICO.
As in Roberts v. United States, supra, we hold that the
inference of Elliott’s guilt was not a reasonable one for the
jury to entertain and that “[rjeasonable hypotheses of
innocence were not excluded”. United States v. Black, 497
F.2d 1039, 1041 (Sth Cir. 1974). We are convinced that
Elliott “‘associated with the wrong people and was
convicted because of guilt by association only’. Roberts,
supra, 416 F.2d at 1221. We thus reverse his conviction
under Count One.
V. THE SECURITIES ISSUE
[24] J.C. Hawkins’ involvement with counterfeit
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Georgia State Certificates of Title furnished the basis for
his conviction on Count Eight of receiving and disposing of
a counterfeit security moving in interstate commerce, in
violation of 18 U.S.C. §2315. Also, because conduct
violative of §2315 qualifies as an act of racketeering
activity under 18 U.S.C. §1961(1)(B), evidence that J.C..,
Delph, and Taylor distributed the counterfeit titles was
admitted during the trial as relevant to the RICO
conspiracy charge, Count One. At trial and in this appeal,
J.C., Delph, and Taylor contend that evidence relating to
the titles was improperly admitted because a Georgia State
Certificate of Title is not a “‘security”’ as that term is defined
in 18 U.S.C. §2311. We cannot agree.
A security, for §2315 purposes, includes, in part, any
“instrument or document or writing evidencing ownership
of goods, wares, and merchandise or transferring or
assigning any right, title or interest in or to goods, wares,
and merchandise”. 18 U.S.C. §2311. Under Georgia law,
a certificate of title is prima facie evidence of ownership of
an automobile and is sufficient to prove ownership in the
absence of evidence clearly contradicting the facts recited
in the certificate. Hightower v. Berlin, 129 Ga.App. 246,
199 S.E.2d 335 (1973); Baker v. State, 123 Ga.App. 394,
181 S.F.2d 288 (1971); Ga.Code Ann. §68-411a(c)
(1975). Accordingly, we held that a Georgia State
Certificate of Title is a “security’’, as defined in 18 U.S.C.
§2311. Cf. United States v. Dickson, 462 F.2d 184 (4th
Cir. 1972), cert. denied, 409 U.S. 876, 93 S.Ct. 126, 34
L.Ed.2d 129. Although appellants cite United States v.
Canton, 470 F.2d 861 (2d Cir. 1972), as authority to the
contrary, we note that Canton involved a counterfeit New
York State certficate of registration “‘the purpose of which
is to show that the motor vehicle may rightfully be operated
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on public highways’’, and which “‘was never intended . . . as
a certificate of title”. Canton is thus inapposite to the facts
of this case.
VI. PROCEDURAL ISSUES
A. Restrictions on the Scope of Cross-Examination
J.C. and Recea Hawkins contend that their Sixth
Amendment right to confront witnesses was denied by the
trial court’s restrictions on the scope of cross-examination.
In general, these restrictions concerned defense efforts to
impeach the government’s witnesses by exposing details of
the agreements under which they testified.
[25] As we said in United States v. Onori, 535 F.2d
938, 945 (Sth Cir. 1976):
The Sixth Amendment confrontation clause guaran-
tees to a criminal defendant the right to cross-examine
a witness against him. See Pointer v. Texas, 380 U.S.
400, 404-05, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
This right is especially important with respect to
accomplices or other witnesses who may have
substantial reason to cooperate with the government.
See, e.g., United States v. Greenberg, 423 F.2d 1106
(Sth Cir. 1970); Grant v. United States, 368 F.2d
658, 661 (Sth Cir. 1966). Indeed, it is so important
that the defendant is allowed to “search” for a deal
between the government and the witness, even if there
is no hard evidence that such a deal exists. See Grant
v. United States, supra. What tells, of course, is not
the actual existence of a deal but the witness’ belief or
disbelief that a deal exists. United States v. Dickens,
417 F.2d 958, 959 (8th Cir. 1969).
[26] The first question we must address is whether the
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restrictions on cross-examination violated the defendants’
Sixth Amendment rights, requiring scrutiny under the
harmless error rule, or whether they were at worst abuses of
discretion without constitutional dimension. We have long
recognized that “‘while the scope of cross-examination is
within the discretion of the trial judge, this discretionary
authority to limit cross-examination comes into play only
after there has been permitted as a matter of right sufficient
cross-examination to satisfy the Sixth Amendment”.
United States v. Bass, 490 F.2d 846, 858 n. 12 (5th Cir.
1974). See also United States v. Mayer, 556 F.2d 245,
250 (Sth Cir. 1977); Grant v. United States, 368 F.2d 658,
661 (5th Cir. 1966). Unless a ruling by the trial judge has
completely foreclosed a line of questioning allowable as a
matter of right, see, e.g., United States v. Greenburg, 423
F.2d 1106 (Sth Cir. 1970); Grant v. United States, supra,
it is often difficult to determine how much cross-examina-
tion is “‘sufficient ... to satisfy the Sixth Amendment”’. In
Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d
347 (1974), the Supreme Court suggested a pragmatic
approach to the problem:
While counsel was permitted to ask Green whether he
was biased, counsel was unable to make a record from
which to argue why Green might have been biased. . .
[T]o make such an inquiry effective, defense counsel
should have been permitted to expose to the jury the
facts from which jurors, as the sole triers of fact and
credibility, could appropriately draw inferences re-
lating to the reliability of the witness. Petitioner was
thus denied the right to effective cross-examination. Id.
at 318, 94 S.Ct. at 1111 (emphasis in original).
[27] In this case, the jury was well aware of the fact that
most of the government’s witnesses were co-conspirators
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and convicted felons, testifying under grants of immunity
and other agreements with the prosecution. In no sense did
the trial court foreclose cross-examination on this issue. We
gather, from the generalized complaints lodged by J.C. and
Recea in this appeal, that, on occasion, the court prevented
further inquiry into certain details of the agreements
between the government and its witnesses. Nevertheless,
the jury was exposed to facts sufficient for it to “draw
inferences relating to the reliability” of the witnesses, and
counsel for J.C. Hawkins, in his closing argument, used
facts developed on cross-examination ‘‘to argue why [the
witnesses] might have been biased.” Davis v. Alaska,
supra. In fact, counsel’s argument could hardly have been
more vociferous:
But what do we have as the witnesses who are trying to
put it on Mr. Hawkins? You know what we have?
We've got every person who’s been caught doing this
or that for the past six years, and what are they doing—
they’re fighting for their lives up there ... [T]hese
persons were given an offer they could not refuse. They
were given immunity; they were made promises; they
had charges dismissed; they had letters written to
probation officers; letters of recommendations to
institutions. They couldn’t turn those down and they
gobbled them up, and they came here to spew out their
guts against J.C. Hawkins... . And this room smelled,
this United States courtroom, which is the symbol of
justice in our society, stunk from the lies of the
Government’s witnesses. T, 2645-47,%4
In his argument, counsel compared the trial to the Tennessee
Williams play “Cat on a Hot Tin Roof”, in which the central character,
“Big Daddy”, complains that he has been lied to all his life. At the
climax of the play, Big Daddy learns that his family has concealed from
him the fact that he is dying from cancer. He makes his exit mumbling,
with disgust, “Yes, all liars, all liars, all lying dying liars!”
aes Sd ee
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In these circumstances, we hold that the restrictions on
cross-examination did not rise to the level of
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