Petition — Starnes v. United States

Supreme Court brief1981

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Text

No. 80-1971

5 woe carr were ss senstil el Court, U.S.

FILED

MAY 2&1 196t

ER L. STEVAS,

Iu the ALEXANDER

Supreme Cowmt of the United

Octoszr Term, 1980

NOBLE R. STARNES,

Petitioner,

vB.

UNITED STATES OF AMERIOA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIROUIT

JULIUS LUCIUS ECHELES

CAROLINE JAFFE

35 East Wacker Drive

Chicago, Illinois 60601

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

QUESTIONS PRESENTED FOR REVIEW

1. Where, of four indicted person, only petitioner was

connected with Tri-No Enterprises, Inc. (Tri-No), the

property of which was burned, and there was no evidence

the other defendants were involved in any way in the con-

duct of Tri-No’s affairs, was not the sole connection be-

tween the four an enterprise for wholly illegal purposes,

outside the scope of RICO,’ rather than—as required for

conviction—the infiltration of a legitimate business?

A. Is the (alleged) association of the four co-de-

fendants for the illegal purposes alleged in the indict-

ment an ‘‘enterprise’’ under 18 U.S.C. 1961(4)?

B. Should the instant cause be taken on certiorari

for consideration together with United States v. Turk-

ette, 632 F.2d 896 (1 Cir. 1980), cert. granted, ...... US.

AR , 49 U.S.L.W. 3525 (No. 80-808, Jan. 27, 1981),

wherein this Cour+ has agreed to review the First Cir-

cuit’s determination that RICO covers only infiltra-

tion of legitimate organizations, a holding in conflict

with the Seventh Circuit’s position as expressed in

the instant case and in United States v. Aleman, 609

F.2d 298 (7 Cir. 1979), that RICO covers the activities

of a wholly unlawful association? ?

C. May affirmance of petitioner’s conviction for

conspiring to violate 18 U.S.C. 1962(c), in violation

118 U.S.C. 1961 et seq., “Racketeer Influenced and Corrupt Or-

ganizations,” (RICO).

? The Eighth Circuit is also aligned with the First Circuit on this

issue, in conflict with the Seventh; see United States v. Anderson,

626 F.2d 1358 (8 Cir. 1980).

of 18 U.S.C. 1962(d), be predicated on the Seventh

Cireuit’s rationale that by burning the building, the

others ‘‘participated’’ in Tri-No’s affairs‘

2. Was the evidence insufficient, as a matter of law, to

establish that ‘‘pattern of racketeering activity’? which is

an element of the RICO offense, per 18 U.S.C, 1961(5),

where a single alleged arson was the basis for the alleged

violations of the Travel Act® and mail fraud statute’ as-

serted to constitute such pattern?

3. Where the federal offense is predicated on intent to

violate State law, [an unlawful conspiracy was charged

which alleged travel from Indiana to Illinois to commit

arson in violation of Illinois law], and the evidence unequi-

vocally demonstrated, at most, prior to the travel, an

agreement to burn personal property only—which, without

intent to defraud an insurer does not amount to arson

under Illinois law’—may the Seventh Circuit affirm peti-

tioner’s conviction upon indulgence in the unwarranted

evidentiary presumption that, in effect, all ‘‘businessmen”’

are charged with knowledge that commercial property is

insured?

A. Compatible with due process of law, as per

Leary v. United States, 395 U.S. 6 (1969), is ‘‘busi-

nessman’’ a legal term of art entitled to talismanic

properties justifying a presumption that a ‘‘business-

man’’ knows that commercial property is insured’

*18 U.S.C, 1952.

*18 U.S.C, 1341.

* Ill, Rev, Stat. chap, 38, sec. 20-1, set forth at p. 5, infra.

iii

B. Does not any such presumption, eliminating the

requirement of proof of a shared intent to defraud an

insurer, effectively rewrite the Illinois statute (incor-

porated within the federal offense) by doing away with

the essential element of intent to defraud an insurer?

4, Were petitioner’s constitutional rights as delineated

by Brady v. Maryland, 373 U.S. 83 (1963), and/or his rights

under the Jencks Act, 18 U.S.C. 3500, violated, where gov-

ernment witness Shurman—an indicted co-defendant who

said he participated in the burning—testified he made

statements to FBI agents while they were taking notes,

and the prosecutor stated the defense ‘‘has everything the

U.S. Attorney has,’’ not negating that the witness’ state-

ments might have been in the possession of the police or

FBI?

A. Is the prosecutor’s response adequate to safe-

guard petitioner’s rights?

B. May the Seventh Circuit avoid deciding this

issue on the basis that there was nothing to suggest

that the notes could be in some way material to issues

involved in the case, where the defense did not have

access thereto because of the prosecutor’s inadequate

response, and the witness involved was a crucial gov-

ernment occurrence witness?

Parties Involved *

In addition to petitioner, co-defendant Clifford Roland

was also a party to the proceeding in the court whose judg-

ment is sought to be reviewed. The other defendants did

not appeal. (See footnotes 6 & 7, infra.)

* As per Rule 21.1(b).

TABLE OF CONTENTS

PAGE

Questions Presented for Review ....ccccccccccccccceeseeeeeees i

PSD FINE = sntitescnessesenisnnesbtiebeniinenstinii iii

Judgment and Opinion Below ..........cccccccccccesceeeeeeeesceeeees 2

Jurisdictional Statement — .............. 2

Constitutional Provisions and Statutes Involved ........ 2

Statement of the Case ................ 5

Basis for Federal Jurisdiction 5

Nature of the Case 5

Statement of Facts _....... 6

Reasons for Granting the Writ .. 10

1. Where, of four indicted persons, only petitioner

was connected with Tri-No Enterprises, Ine. (Tri-No),

the property of which was burned, and there was no

evidence the other defendants were involved in any

way whatsoever in the conduct of Tri-No’s affairs, the

sole connection between the four was an enterprise for

wholly illegal purposes, outside the scope of RICO,

rather than—as required for conviction—the infiltra-

tion of a legitimate business. Certiorari should be al-

lowed so that this Court may resolve the conflict be-

tween the Circuits demonstrated by comparing the in-

stant case with United States v. Turkette, 682 F.2d (1

Cir. 1980), cert. granted, ........ cnienes , 49 U.S.L.W.

3525 (No, 80-808, Jan. 27, 1981), wherein the Court has

agreed to review the First Circuit’s decision that

PAGE

RICO covers only infiltration of legitimate organiza-

tions, a holding in conflict with the Seventh Circuit's

position as expressed in the instant case and in United

States v. Aleman, 609 F.2d 298 (7 Cir. 1979), that

RICO covers the activities of a wholly unlawful as-

sociation. Certiorari should be allowed to insure a uni-

form interpretation of the statute as to the issue wheth-

er the alleged association of persons for wholly illegal

purposes is an ‘‘enterprise’’ under 18 U.S.C. 1961(4) ..

2. The evidence was insufficient, as a matter of law,

to establish that ‘‘pattern of racketeering activity’’

which is an element of the RICO offense, per 18 U.S.C.

1961(5), where a single alleged arson was the basis

for the alleged violations of the Travel Act and mail

fraud statute asserted to constitute such pattern. Cer-

tiorari should be allowed so that the Court may con-

sider the proper statutory meaning of ‘‘pattern’’,

specifically, here, whether a single alleged arson, how-

ever designated, may amount to a ‘‘pattern’’ within the

meaning of 18 U.S.C. 1962(¢), as defined by 18 U.S.C.

SERRE rae aS EO 2

3. Where the federal offense is predicated on in-

tent to violate State law, [here, an unlawful conspiracy

was charged which alleged travel from Indiana to Illi-

nois to commit arson in violation of Illinois law], and

the evidence unequivocally demonstrated, at most,

prior to the travel, an agreement to burn personal prop-

erty only—which, without intent to defraud an insurer,

does not amount to arson under Illinois law—the re-

viewing court may not affirm petitioner’s conviction

upon indulgence in the unwarranted evidentiary pre-

sumption that, in effect, all ‘‘businessmen’’ are charged

with knowledge that all commercial property is in-

sured; such presumption violates due process of law

and unjustifiably rewrites the State statute ...............

vii

PAGE

‘*Businessman”’ is not a legal term of art entitled

to talismanic properties justifying a presumption

that a ‘‘businessman’’ knows that commercial

property is insured; such presumption, lack-

ing a rational basis, offends due process of law

under such holdings as Leary v. United States, 395

ES I cathe scsatahtnabelaasendodenbediatndateson em

Any such presumption, eliminating the require-

ment of proof of a shared intent to defraud an

insurer, effectively rewrites the Illinois statute

(incorporated within the federal offense) by do-

ing away with the essential element of intent to

I sia. cae hasctebesbenehamendensccnsnes

4. Petitioner’s constitutional rights as delineated

by Brady v. Maryland, 373 U.S. 83 (1963), and/or his

rights under the Jencks Act, 18 U.S.C. 3500, were

violated, where government witness Shurman—an in-

dicted co-defendant who said he participated in the

burning—testified he made statements to FBI agents

while they were taking notes, and the prosecutor stated

the defense ‘‘has everything the U.S. Attorney has,’’

not negating that the witness’ statements might have

been in the possession of the police or FBI. Under

these circumstances:

The prosecutor’s response was inadequate to safe-

guard petitioner’s rights;

The reviewing court may not avoid deciding this

issue on the basis there was nothing to suggest

that the notes could be in some way material to

issues involved in the case, where the defense did

not have access thereto because of the prosecu-

tor’s inadequate response, and the witness in ques-

tion was a crucial government occurrence witness

TOE SERS STI RE OTE

viii

PAGE

Appendix A Opinion of the Court of Appeals for

the Seventh Circuit, No. 80-1487 0.0... App. 1

Appendix B Order denying Petition for Rehearing

GRRDUE BRITE hg TOE onesie sncssotisiniicrssreiacesseviohs App. 16

AUTHORITIES CITED

Cases

Barbee v. Warden, 331 F.2d 842 (4 Cir. 1964) ............ 25

Bell v. United States, 349 U.S. 81 (1955)... 16

Brady v. Maryland, 373 U.S. 83 (1963) .........:ccssse 24, 25

Busie v. United States, 446 U.S. 398 (1980) ............ 16

Curran v. Delaware, 259 F.2d 707 (3 Cir. 1958) ............ 25

Grayned v. City of Rockford, 408 U.S, 104 (1972) .... 16

Jackson v. Virginia, 443 U.S. 307 (1979) .............. 12, 21, 22

Ladner v. United States, 358 U.S. 169 (1958) ........0....... 16

Leary v. United States, 395 U.S. 6 (1969) ............... 17, 22

Morissette v. United States, 342 U.S. 246 (1952) ........ 15

Papachristou v. City of Jacksonville, 405 U.S. 156

(1971) 15

Prince v. (United States, 352 U.S. 322 (1957) 00.00... 16

Pyle v. Kansas, 317 U.S. 213 (1942) ............ssssssssssseees 25

Rewis v. United States, 401 U.S. 818 (1971) ............... 20

Simpson v. United States, 435 U.S. 6 (1978) ............ 16

Smith v. United States, 360 U.S. 1 (1959)... 15

United States v. Aleman, 609 F.2d 298 (7 Cir. 1979) ..10, 11

PAGE

United States v. Anderson, 626 F.2d 1358 (8 Cir. 1980) 15

United States v. Bass, 404 U.S. 336 (1971) 0000000... 20

United States v. Chovanec, 467 F.Supp. 41 —

BN 7 ie cake ihiskales Claret sashes cenecinieaseultadina —

United States v. Forsythe, 594 F.2d 947 (3 Cir. 1979) . ly

United States, v. Harrison, 524 F.2d 421 (D.C. 1975) .. 25

United States v. Ladmer, 429 F.Supp. 1231 (B.D.N.Y.

1977) ; 15

United States v. Mennuti, 639 F.2d 107 (2 Cir. 1981) .... 19

United States v. Resnick, 299 U.S. 207 (1936) ................ 15

United States v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.

1973) 15

United States v. ‘lurkette, 632 F.2d (1 Cir. 1980),

cert. granted, ........ US. ........5 49 US.L.W. 3525

(No. 80-808, Jan. 27, 1981) 10, 10-11

United States v. Universal C.I.1. Credit Corp., 344

U.S. 218 (1952) 16, 20

United States v. Weatherspoon, 581 F.2d 595 (7 Cir.

1978) 14

United States v. White, 386 F.Supp. 882 (E.D. Wis.

1974) : 15

Other Authorities

50 CUO; GON) accsctsscn 19

o046 100 .. ; 13, 18

wUs0 28... Re BO 12, 18

O80 ee) 12

Ba er ITED. Ss teso hast sadeceessnsdlscoondincthinasnnensinneensceveomntese 10

PAGE

18 U.S.C. 1961(5) _...... »

BO a Fe ite icchcrescccccsseccecececeeees 12,13

BP BE 13, 19

pT BR GU eo Ee 24, 25

Trisz, AMERICAN ConstituTIONAL Law 718-19 (1978) .. 15

Ill. Rev. Stat., 1979, ‘Ch. 38, See. 20-1(b) 0.0.00... 13, 16

Iu the

Supreme Court of the United States

Ocrozer Term, 1980

. No.

NOBLE R. STARNES,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Noble R. Starnes, prays that a Writ of Cer-

tiorari be issued to the United States Court of Appeals

for the Seventh Circuit, to review its decision affirming his

conviction for conspiring to engage in a pattern of racket-

eering in connection with a scheme to commit arson with

intent to defraud an insurer, in violation of 18 U.S.C.

$ 1962(d), a provision of the Racketeer Influenced and

Corrupt Organizations Act (RICO).

Judgment and Opinion Below

The opinion of the Court of Appeals for the Seventh

Circuit, No. 80-1437, is not yet reported. A copy is attached

as Appendix A, per Rule 21.1(k)(i) of this Court.

Jurisdictional Statement

On March 20, 1981, the Seventh Circuit filed its opinion

affirming the judgment of the United States District Court

for the Eastern District of Illinois, Benton Division, find-

ing petitioner guilty as charged. (App. A) Petitioner’s

timely petition for rehearing was denied on April 21, 1981.

(App. B) This Petition is timely filed within 60 days after

entry of judgment by a federal court of appeals, as pro-

vided in Rule 20.1. Jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

Constitutional Provisions and Statuies Involved

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

‘*No person shall . . . be deprived of .. . liberty

... without due process of law;...’’

The Sixth Amendment to the United States Constitution

provides, in pertinent part:

‘In all criminal prosecutions, the accused shall

enjoy the right . .. to have the Assistance of Counsel

for his defence.’’

18 U.S.C. 1341 (mail fraud) is involved by reference, but

there is no issue here as to the interpretation of this sec-

tion.

18 U.S.C. 1952 (‘‘Travel Act’’) provides in pertinent

part:

‘*(a) Whoever travels in interstate . . . commerce

or uses any facility in interstate . . . commerce, in-

cluding the mail, with intent to—...

a - .

(3) otherwise promote, manage, establish, carry on,

or facilitate the promotion, management, estab-

lishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any

of the acts specified . . . [above], shall be fined not

more than $10,000 or imprisoned for no more than five

years, or both.

(b) As used in this section ‘unlawful activity’

means... (2) ... arson in violation of the laws of

the State in which they are committed or of the United

States.’’

18 U.S.C. 1961 (‘*RICO’’) provides in pertinent part:

‘* Definitions

As used in this chapter:

(1) ‘Racketeering activity’ means (A) any act...

involving .. . arson .. . which is chargeable under

State law and punishable by imprisonment for more

than one year; (B) any act which is indictable under

any of the following provisions of title 18, United

States Code: ... section 1341 (relating to mail fraud),

... section 1952 (relating to racketeering) .. .

(4) ‘enterprise’ 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;

(5) ‘pattern of racketeering activity’ requires at least

two cts of racketeering activity .. .’’

18 U.S.C. 1962 (‘‘RICO’’) provides in pertinent part:

‘*Prohibited Activities

by or associated with any enterprise engaged in, or

the activities of which affect, interstate . . . commerce,

to conduct or participate, directly or indirectly, in the

conduct of such enterprise’s affairs through a pattern

of racketeering activity ...

(d) It shall be unlawful for any person to conspire

to violate any of the provisions of subsections (a),

(b) or (c) of this section.’’

18 U.S.C. 3500 provides:

(b) After a witness called by the United States has

testified on direct examination, the court shall, on mo-

tion of the defendant, order the United States to pro-

duce any statement (as hereinafter defined) of the

witness in the possession of the United States which

relates to the subject matter as to which the witness

has testified. If the entire contents of any such state-

ment relate to the subject matter of the testimony of

the witness, the court shall order it to be delivered di-

rectly to the defendant for his examination and use.

(e) The term ‘statement’, as used in subsections

(b), (c), and (d) of this section in relation to any wit-

ness called by the United States, means—

(1) a written statement made by said witness

and signed or otherwise adopted or approved by

him;

(2) a stenographic, mechanical, electrical, or

other recording, or a transcription thereof, which

is a substantially verbatim recital of an oral state-

ment made by said witness and recorded contem-

poraneously with the making of such oral state-

ment; or

(3) a statement, however taken or recorded, or

a transcription thereof, if any, made by said w#)-

ness to a grand jury.

Ill. Rev. Stat., 1979, Chap. 38, Sec. 20-1 (‘‘Arson’’) pro-

vides, in pertinent part:

‘*A person commits arson when, by means of fire or

explosive, he knowingly:

(b) With intent to defraud an insurer, damages any

property or any personal property having a value of

$150 or more.”’

STATEMENT OF THE CASE

Basis for Federal Jurisdiction

Petitioner was indicted for having violated a federal

criminal statute, 18 U.S.C. 1962(d). The basis for fed-

eral jurisdiction in the court of first instance is 18 U.S.C.

§ 3231.

Nature of the Case

Petitioner, Noble Starnes, was charged in only Count 1

of a 2-count indictment with having conspired with three

other defendants in violation of 18 U.S.C. 1962(d), con-

tinuously from on or about February 1, 1978 until the re-

turn of the indictment.® Specifically, Count 1 charged that

defendants conspired to use a pattern of racketeering ac-

tivity in the conduct of the affairs of an enterprise engaged

in interstate commerce,’ in that the other three co-defen-

® Indicted with petitioner were Gerald Shurman, Clifford Roland,

and Donald Murphy. Roland went to trial with defendant, while

Shurman and Murphy (having theretofore pleaded guilty to Counts

1 and 2, respectively), testified against them.

7Count 2 charged the other three defendants with violation of

the Travel Act, 18 U.S.C. 1952(a)(3). See Tr. 181-85. “R.” re-

fers to the Record on Appeal, and “Tr.” to the Transcript of Pro-

ceedings.

The “enterprise” as alleged throughout the indictment is, per

the government’s theory of the case, Tri-No Enterprises, Inc. See

Count 1, pars. 3, 4 & 5, App. A, p. 9.

dants would travel in interstate commerce (from Gary,

Indiana to Herrin, Illinois) to commit an arson in violation

of Illinois law; that two of them* would commit the said

arson; that petitioner, as president of Tri-No Enterprises,

Inc., a corporation engaged in interstate commerce, would

make a false claim for damages on behalf of the said com-

pany, under a certain insurance policy; and that petitioner

would commit mail fraud in violation of 18 U.S.C. 1341 by

causing certain things to be delivered by muil as a part of

the said conspiracy to defraud the insurance company via

the false claim. (R. 1-16)

Petitioner’s motions for directed finding at the close of

the government’s case (R. 13) and at the close of all the

evidence were denied, and the jury found him guilty as

charged. He was sentenced to 6 years and fined $5000.00.

(R. 20) The Seventh Circuit affirmed. (App. A)

Statement of Facts

All facts essential to understanding and resolution of

the questions presented by this Petition are contained in

the Court of Appeals’ opinion, App. A, and are not re-

peated here to avoid unnecessary duplication. To supple-

ment, the pertinent facts are briefly stated below:

Donald Murphy testified for the government that he

met with defendants Roland and Gerald Shurman in Gary,

Indiana on February 12, 1978 and Roland ‘‘said some-

thing about burning an office.’’ (Tr. 139-40) They talked

about burning a mining office. (Tr. 142) Later, on Feb-

ruary 18, 1978, there was another discussion about going

to southern Illinois. It was only after they had driven

8 To wit, Shurman and Murphy.

from Gary, Indiana to Sesser in southern Illinois that

they met with petitioner Starnes and then went to Herrin,

Illinois. (Tr. 150) It was only then that he remembered

Starnes saying, ‘‘ Well, I want it completely destroyed.’’

(Tr. 151) Shurman was siphoning gas out of a car in order

to get fuel in addition to the lacquer thinner they bought

in Indiana. (Tr. 153) They then purchased gas at a gas

station. (Tr. 153-54)

Roland paid Murphy and Shurman $1,400 and said that

he would guarantee the balance. (Tr. 155)°

Gerald Shurman testified for the government that he

had met with Roland in a Gary, Indiana nightclub on

February 12, 1978, and talked about an office fire to destroy

records relating to coal miners. ‘‘The fire was—at the time

it was talked about, was going to be an office fire to destroy

records and was to—it was related to the coal miners,

either their office complex or related to their whereabouts,

yor know. What area I did not know at the time.’’ (Tr.

247) He got Donald Murphy to help and gave Murphy $100

to buy lacquer thinner, which money he had obtained from

Roland in Indiana a week before. When they drove to

southern Illinois with the lacquer thinner, they met with

Starnes near Sesser, Illinois and then drove with Starnes

to a building near Christopher, Illinois. (Tr. 253-54) They

went to a building and Starnes said he wanted the whole

building destroyed -— that ‘‘it was no longer a situation

where the office was to be burned and destroyed, but the

® Shurman pleaded guilty to Count 1, and Murphy to Count 2.

Both were awaiting sentence when they testified at petitioner’s trial.

See Tr. 181-85, footnote 6, supra. They acknowledged they expect-

ed their sentencing to be contingent on how well they “cooperated”

with the prosecution in their testimony against petitioner and Ro-

land. (Tr. 181-85; 274-75) The government promised not to pro-

ceed against them on the remaining respective count against each.

whole building was supposed to be destroyed.’’ (Tr. 254)

Shurman said, ‘‘Okay, I agree.’’ (Tr. 255)

He and Murphy and Roland decided to siphon some

gasoline out of the camper ‘‘because of the amount of

lacquer thinner that we purchased. It wouldn’t be enough

fluid to cause a big enough fire to burn the building down

so that we decided we needed 34 gallons of gas to add to

it.’’ (Tr. 255-56)

He and Murphy were not aware they were going to

burn the whole building, just ‘‘to burn the records and

things of the United Mine Workers because a strike was

supposed to end that Monday or Tuesday of that week

and we weren’t prepared and we didn’t know that they

wanted the whole building burned down, and the impres-

sion—the thoughts they related to me—+that was only the

intention—was tv make obvious that the mine workers

would be blamed for it and that’s why we were not pre-

pared. We didn’t have the proper. . .’’ (Tr. 258)

On February 19, 1978 Shurman and Murphy burned

this building, used by Tri-No Enterprises, Inc., of which

petitioner Starnes was President. (Tr. 109)

Before the fire, Roland paid Shurman $1,400 stating

‘‘, ,. that was all that Mr. Starnes could come up with.”’

(Tr. 262) He split the money with Murphy. (Tr. 263) The

next day Roland told him there would be no more money

because there wasn’t much damage done to the building.

Weeks later, back in Indiana, he talked to Roland sev-

eral times about the balance of the money. Several weeks

later, he found out the building had substantial damage,

in the neighborhood of $200,000 and that a private adjuster

had come in. (Tr. 263-64) Roland indicated there was addi-

tional damage to the building and said that ‘‘. . . the

money would be given after the insurance settlement was

made on the building.’’ (Tr. 264) He did not receive the

rest of the money. (Tr. 264)

Petitioner processed an insurance claim for damages

due to the burning of the building owned and used by

Tri-No Enterprises, Inc. (Tr. 113-15)

During the trial, government witness Shurman testified

that FBI agents were taking notes when he made state-

ments to them. The defense demanded them as no such

statements had been given to the defense. The government

was relieved by the court of any further responsibility

when the prosecutor stated, ‘‘{[The defense] has every-

thing the U.S. Attorney has.’’ (Tr. 315)

All other facts necessary to an understanding and reso-

lution of the issues raised herein are set forth in the course

of the Argument, as and when pertinent.

REASONS FOR GRANTING THE WRIT

Where, of four indicted persons, only petitioner was

connected with Tri-No Enterprises, Inc. (Tri-No), the

property of which was burned, and there was no evidence

the other defendants were involved in any way whatsoever

in the conduct of Tri-No’s affairs, the sole connection be-

tween the four was an enterprise for wholly illegal pur-

poses, outside the scope of RICO, rather than—as required

for conviction—the infiltration of a legitimate business.

Certiorari should be allowed so that this Court may resolve

the conflict between the Circuits demonstrated by com-

paring the instant case with United States v. Turkette,

632 F.2d (1 Cir. 1980), cert. granted, ........ |} Seen , 49

U.S.L.W. 3525 (No. 80-808, Jan. 27, 1981), wherein ‘the

Court has agreed to review the First Circuit’s decision that

RICO covers only infiltration of legitimate organizations,

a holding in conflict with the Seventh Circuit’s position as

expressed in the instant case and in United States v. Ale-

man, 609 F.2d 298 (7 Cir. 1979), that RICO covers the

activities of a wholly unlawful association.* Certiorari

should be allowed to insure a uniform interpretation of

the statute as to the issue whether the alleged association

of persons for wholly illegal purposes in an “enterp

under 18 U.S.C. 1961(4).

In direct conflict with United Stutes v. Anderson, 626

F.2d 1358 (8 Cir. 1980), and United States v. Turkette, 632

* Also aligned with the First Circuit on this issue is the Eighth;

see United States v. Anderson, 626 F.2d 1358 (8 Cir. 1980).

F.2d 896 (1 Cir. 1980), cert. granted, ........ | ee , 49

U.S.L.W. 3525 (No. 80-808, Jan. 27, 1981), the Seventh Cir-

cuit has decided, in conformity with its prior decision in

United States v. Aleman, 609 F.2d 298 (7 Cir. 1979), that

associations—as at bar—for purely illegitimate purposes,

are included within RICO coverage.

Under the view of the First and Eighth Circuits in the

above cases, the association of persons—(as per the gov-

ernment’s theory here)—for an entirely illegitimate pur-

pose, is not an ‘‘enterprise’’ within the statute. Here,

while (per the government’s position) Tri-No, a legitimate

business, was the ‘‘enterprise’’ involved,” there was no

evidence to support the conclusion that any of the defen-

dants infiltrated or participated—directly or indirectly—

in the affairs of the said business. Their association

(arguendo) was solely for the illegitimate purpose of the

single event of the burning. Thus, their association does

not qualify as an ‘‘enterprise.’’

Considering that certiorari has been granted in Turk-

ette, and since a slightly different aspect of the ‘‘enter-

prise’’ issue is presented here (with respect to whether

the defendants’ involvement in the burning amounts to par-

ticipation in the affairs of the legitimate business, Tri-No),

certiorari should be allowed so as to resolve completely

the perplexing conflict amongst the Circuits.

10 See App. A, p. 9.

The evidence was insufficient, as a matter of law, to estab-

lish that “pattern of racketeering activity” which is an ele-

ment of the RICO offense, per 18 U.S.C. 1961(5), where a

single alleged arson was the basis for the alleged viola-

tions of the Travel Act and mail fraud statute asserted

to constitute such pattern. Certiorari should be allowed

so that the Court may consider the proper statutory mean-

ing of “pattern”, specifically, here, whether a single al-

leged arson, however designated, may amount to a “pat-

tern” within the meaning of 18 U.S.C. 1962(c), as defined

by 18 U.S.C. 1961(5).

Under the due process standard recently set out by this

Court in Jackson v. Virginia, 443 U.S. 307 (1979), even

taking all the evidence most favorably to the government,

no reasonable jury could have concluded that defendants

participated in a ‘‘pattern’’ of racketeering activity as

defined by law. In Jackson Your Honors heid that a defen-

dant’s conviction should be reversed if, viewing the evi-

dence in the light most favorable to the prosecution, upon

the record evidence at trial, no rational trier of fact could

have found proof of guilt beyond a reasonable doubt in

terms of the substantive elements of the offense. 7d. at 324.

Under RICO, a ‘‘pattern’’ of racketeering activity re-

quires at least two acts of racketeering activity, 18 U.S.C.

1961(5); and ‘‘racketeering activity,’’ in turn, is defined

in 18 U.S.C. 1961(1) to include arson in violation of state

law, violation of the Travel Act (18 U.S.C. 1952), and mail

fraud (18 U.S.C. 1341).

Here, the government has taken a single alleged arson,

and managed to fragment it, both in the indictment and

in the presentation of the case to the jury, to assert not

only arson, but also violation of the Travel Act and mail

fraud, in an attempt to render that single alleged arson a

‘pattern’? of racketeering activity, an essential element

of the offense of which petitioner stands convicted. 18

U.S.C. 1962(c) & (d).

Without intent to defraud an insurer, there is no arson

under Illinois law when one causes one’s own property to

be burned. Ch. 38, Sec. 20-1(b) Ill. Rev. Stat., 1979. How-

ever, by asserting mail fraud in the attempt to process the

allegedly false claim, the government has taken a neces-

sary element of arson-—i.e., intent to defraud, without

which there is no arson in violation of State law—and im-

properly made it serve doubly so as to form the basis both

of arson and of mai) fraud. Thus, the alleged mail fraud

is inextricably intertwined with the act of arson itself, if

arson there was.

In other words, if the burning was arson, the use of

the mails in the attempt to effectuate the fraudulent pur-

pose was an essential ingredient of that said arson, not—

as the government would have it—an additional ‘‘act of

racketeering activity’? from which a ‘‘pattern’’ could be

found to exist.

By the same token, the act of travel to effectuate the

alleged arson cannot qualify as an additional act so as

to meet the government’s burden of proving a ‘‘pattern’’ ;

for when the travel is for purposes of effectuating a par-

ticular unlawful act (here, arson), such travel cannot be

compounded with the act itself to become a ‘‘pattern.’’

Any contrary holding renders meaningless the statutory

definition of a ‘‘pattern.’’ For if travel to commit the

arson be ‘‘racketeering activity,’’ and the arson also be

so characterized, then any successfully consummated vio-

lation of the Travel Act automatically renders the perpe-

trator also guilty of a RICO violation, for the travel and

the unlawful activity together would then constitute two

acts.

Such result of fracturing and compounding single acts

so as to subject a defendant to the added onus of illogical

multiple prosecutions must not be countenanced."

Relying on a single Seventh Circuit decision, United

States v. Weatherspoon, 581 F.2d 595, 601-02 (7 Cir. 1978),

the appeals court has ruled that although but a single ob-

jective—the burning—was involved, the separate acts

here alleged amount to a ‘‘pattern’’ within the definition ;

per the court, ‘‘Each is a separate act of racketeering.’’ ™

The Seventh Circuit—-in Weatherspoon, and again at

bar—has taken a position at odds with that taken by other

11 The reason for such machinations clearly lies in the respective

penalties for the offenses; for a defendant charged only with a vio-

lation of the Travel Act faces a possibility of 5 years imprisonment,

while he who is charged with a RICO violation faces up to 20 years.

(See statutes, pp. 2-4, supra.)

12 “Under RICO, the conspiratorial objective is a matter differ-

ent than the acts contemplated by the conspirators. Those acts

in this case include Roland's travelling with Shurman and

Murphy from Indiana to Illinois so they could set the fire in

order to defraud the insurer; actually setting the fire in order

to defraud the insurer; and then using the mails to complete

the fraudulent scheme.” (App. A, p. 7) (Emphasis in original.)

18 App. A, p. 7.

courts which have addressed themselves to the meaning of

‘*pattern’’ in the RICO context."

Because of this conflict between the instant opinion and

other judicial decisions construing the pertinent statutory

language, this Court should consider the issue to insure

uniformity of interpretation of the federal criminal law.

The reviewing court inexplicably has put RICO in a

class by itself vis 4 vis the normally applicable rules of

statutory construction—specifically, those most basic ten-

ets involving the strict interpretation of criminal statutes

in favor of the accused,” and that ‘‘doubt will be resolved

14 That a single, isolated event does not qualify as a “pattern” is

supported by the following decisions: United States v. Chovanec,

467 F.Supp. 41, 44 (S.D.N.Y. 1979) (“pattern . . . embraces crim-

inal acts that . . . are not isolated events”); United States v.

White, 386 F.Supp. 882, 883-84 (E.D. Wis. 1974) (pattern im-

plies “a consistent or characteristic arrangement”; “absent a show-

ing of a ‘pattern’ or interrelatedness of such activity, Sec. 1962(c)

could be used against . . . isolated acts . . . such was not the in-

tended targets of the challenged statute.”); cf. United States v.

Ladmer, 429 F.Supp. 1231, 1244-45 (E.D.N.Y. 1977); United

States v. Stofsky, 409 F.Supp. 609, 614 (S.D.N.Y. 1973). The

Seventh Circuit's peripheral reliance on Stofsky, supra, (App. A, p.

7) and Chovanec, supra, (App. A, p. 8), is misplaced, upon careful

reading of these cases, both of which were relied on by defendant

below. See also United States v. Anderson, 626 F.2d 1358, 1371

(8 Cir. 1980), dictum quoted at App. A, p. 8.

“Statutes creating crimes are to be strictly construed .. .’

United States v. Resnick, 299 U.S. 207, 209 (1936). Accord,

Smith v. United States, 360 U.S. 1, 9 (1959) ; Morissette v. United

States, 342 U.S. 246, 263 (1952) ; Papachristou v. City of Jackson-

ville, 405 U.S. 156, 162 (1971) ; Grayned v. City of Rockford, 408

U.S. 104, 108 n.3 (1972); see also Trisz, AmerIcaAn ConstITU-

TIONAL Law 718-19 (1978).

against turning a single transaction into multiple of-

enses.’’’* In particular, the court has refused to be guided

by the philosophy underlying this Court’s recent decision

in Busic v. United States, 446 U.S. 398 (1980)."

The Seventh Circuit’s decision—fragmenting a single

event into a ‘‘pattern’’ so as to impose federal criminal

liability on what was, at most, essentially a local offense,

if any, in the face of judicial philosophy and rules of statu-

tory construction requiring the opposite conclusion—

should be scrutinized by this Court on certiorari.

Where the federal offense is predicated on intent to vio-

late State law, [here, an unlawful conspiracy was charged

which alleged travel from Indiana to Illinois to commit

arson in violation of Illinois law], and the evidence un-

equivocally demonstrated, at most, prior to the travel, an

agreement to burn personal property only—which, without

intent to defraud an insurer, does not amount to arson

under Illinois law*—the reviewing court may not affirm

petitioner’s conviction upon indulgence in the unwarrant-

ed evidentiary presumption that, in effect, all “business-

men” are charged with knowledge that ali commercial

property is insured; such presumption violates due pro-

cess of law and unjustifiably rewrites the State statute.

16 Simpson v. United States, 435 U.S. 6, 15 (1978), quoting from

Bell v. United States, 349 U.S. 81, 84 (1955). Accord, Ladner v.

United States, 358 U.S. 169 (1958); Prince v. United States, 352

U.S. 322 (1957); United States v. Universal C.1.T. Credit Corp.,

344 U.S. 218 (1952).

7 App. A, pp. 10-11, n.7, While Busic is not squarely on point,

its underlying philosophy does, we submit, support petitioner’s posi-

tion here. The court’s summary decision that “There is no Busic

situation implied by the facts of this case,” (App. A, p. 11, n.7),

ignores the principles underlying that decision.

*Tll. Rev. Stat. 1979, chap. 38, Sec. 20-1, set out at p. 5, supra.

A. “Businessman” is not a legal term of art entitled

to talismanic properties justifying a presumption

that a “businessman” knows that commercial prop-

erty must be insured; such presumption, lacking a

rational basis, offends due process of law under

such holdings as Leary v. United States, 395 U.S.

6 (1969).

B. Any such presumption, eliminating the requirement

of proof of a shared intent to defraud an insurer,

effectively rewrites the Illinois statute (incorpo-

rated within the federal offense) by doing away

with the essential element of intent to defraud an

insurer.

Kven according to the government’s witnesses, the scope

of the original agreement between themselves and Roland

included only the burning of certain office records for the

purpose of discrediting a labor union, (Tr. 247, 258)

Not until after Shurman and Murphy traveled to Iili-

nois from Indiana for the purpose of carrying out this

agreement were the terms expanded to include the burn-

ing, not only of the records, but also of the building con-

taining the office. (Tr. 254, 258) More gasoline was pro-

cured for this purpose because the lacquer thinner Shur-

man and Murphy brought from Indiana was not enough

fluid to burn the building down. (Tr. 255-56)

And not until after the burning, when Shurman and

Murphy demanded payment of the balance still due them,

was insurance mentioned; for at that time—for the first

time—back in Indiana—an insurance claim was discussed,

when Roland advised them they would receive the final

balance due after collection of the insurance proceeds. (Tr.

263-64)

Prerequisite to finding petitioner guilty of conspiracy

under 18 U.S.C. 1962(d)—the only charge against him—is

a finding that a State law felony was involved as alleged.

Per the indictment, an unlawful conspiracy was charged,

which involved travel from Indiana to [llinois to commit

arson in violation of Illinois law.

However, because the agreement before Shurman and

Murphy departed from Indiana involved only the burning

of office records to discredit a union—with no insurance

purposes set forth, overtly or implicitly—-the evidence was

insufficient to demonstrate an agreement to travel to IIli-

nois to commit arson as defined by State law.

Under Illinois law, (see statute, set forth at p. 3,

supra), the burning of the property of another with his

consent—as alleged in the instant case—is not arson unless

it is done with intent to defraud an insurer. Since there

was no agreement to burn the building, as opposed to burn-

ing merely the office records, until after eertain of the

defendants traveled from Indiana to Illincis—and no ink-

ling of any intent to make an insurance claim until well

after the burning itself had been consummated—no crime

of arson was contemplated under Illinois law.

Here, while alleged violations of the Travel Act (18

U.S.C. 1952) and the Mail Fraud statute (18 U.S.C. 1341)

are also set forth as parts of the conspiracy, underlying

these violations, tco, is arson in violation of State law.

Without an agreement to travel to commit arson as alleged

in pars. 2 and 3 of Count 1, there was no violation of the

Travel Act; and without an agreement to defraud (pursu-

ant to the said arson as statutorily defined) there could be

no mail fraud as alleged in par. 5, in the presentation of an

alleged false claim as alleged in par. 4. (See Indictment

R. 1-16.)

In other words, the government’s case entirely depended

upon proof of arson as defined by State law.”

But because, even taking the evidence most favorably

to the government, the initiai agreement encompassed only

a burning which did not amount to arson under Illinois

law, and because defrauding of an insurer did not enter

the picture until after the burning had actually taken

place, there was no proof of a conspiracy to commit arson

as defined by State law. Therefore, under the pertinent

statutes, the evidence was entirely lacking as to an essen-

tial element of the offense with which petitioner was

charged, that is, 18 U.S.C. 1962(d).”

18In United States v. Forsythe, 594 F.2d 947 (3 Cir. 1979),

defendants were charged with conspiracy in violation of 18 U.S.C.

1962(d). Rejecting their contention that the jury should have been

charged on the elements of a lesser included State offense, the re-

viewing court stated :

“[I]f the defendant is not guilty of a state law felony, he is

guilty of no federal crime. . . . The court properly charged that

the government had to prove each element of the predicate

felony before the defendant could be found guilty of anything.”

Id. at 952. (Emphasis added.)

19 See also United States v. Mennuti, 639 F.2d 107 (2 Cir. 1981),

affirming dismissal of an indictment under a different section of

RICO [18 U.S.C. 844(i)] on grounds that destruction of two pri-

vate residences by means of an explosive did not constitute de-

struction of a building “used in interstate or foreign commerce or

in any activity affecting interstate or foreign commerce.” Jd. at 109.

While the section involved is different—Starnes was convicted

under sec. 1962(d) for a conspiracy to travel from Indiana to IIli-

nois to commit arson as defined by Illinois law, a section not con-

taining the same “interstate” nexus as that involved in Mennuti,

supra,—the Appeais’ Court’s reasoning in affirming dismissal there

is instructive.

Significantly, the court stated “that Congress did not choose, as

(footnote continued)

The Seventh Circuit agrees that Roland’s ‘‘intent to de-

fraud an insurer’’ is essential to Starnes’ RICO convic-

tion. (App. A, pp. 5-6) Unless Roland shared Starnes’

intent to defraud an insurer, Starnes could not be guilty

of a conspiracy so to do with Roland.”

The Seventh Circuit relies on two different types of rea-

soning to conclude there was sufficient evidence from which

(footnote continued)

the Government contends, to make nearly every bombing in the

country a federal offense .. .” Jd. at 113.

Noting that “The legislative history . . . does not afford the

slightest indication that Congress intended to punish all arson

schemes,” jd. at 113 n.4, the reviewing court applied principles of

statutory construction as stated by this Court, that “ambiguity con-

cerning the ambit of criminal statutes should be resolved in favor of

lenity,’” id. at 113, quoting from Rewis v. United States, 401 U.S.

818, 812 (1971), and that “ ‘when choice has to be made between

two readings of what conduct Congress has made a crime, it is ap-

propriate, before we choose the harsher alternative, to require that

Congress should have spoken in language that is clear and defini-

tive’.” Ibid., quoting from United States v. Universal C.1.T. Credit

Corp., 344 U.S. 218, 221-22 (1952), and referring also to United

States v. Bass, 404 U.S. 336, 347-49 (1971).

20 If the two non-appealing co-defendants, Shurman and Murphy,

had the requisite intent, they did not formulate it until after the

interstate travel; see pp. 6-7, supra, detailing evidence at Tr. 254-

56, 258. The reviewing court thus properly assumes that to sustain

Starnes’ conspiracy conviction—regardless of Starnes’ own state of

mind, see App. A, pp. 5-6—the jury had to find “that Roland in-

tended to defraud Starnes’s insurer.” (App. A, p. 6) Thus, though

there were two additional persons convicted for violation of the

Fraud Act, see fn. 7, supra, Starnes’ conviction can be supported

only if Roland, too, knew—before the travel—that the fire was for

purposes of defrauding an insurer.

Starnes’ guilt cannot be predicated upon the state of mind of

either Shurman or Murphy.

the jury could properly conclude that Roland intended to

defraud Starnes’ insurer: (1) inferences from Roland’s

relationship with Starnes, and (2) presumptions arising

from Roland’s having been a ‘‘businessman.’’

All the details concerning their relationship, even taken

together, are insufficient as a matter of law to support the

requisite finding. Indeed, the reviewing court so much as

admits this; for after detailing this evidence,” the court

states:

‘“‘This evidence suggests that Roland was privy to

Starnes’ reasons for setting the fire.’’ (App. A, p. 5)

(Emphasis added.)

Evidence which merely ‘‘suggests’’ an essential element

of the offense obviously is insufficient as proof of such ele-

ment, as a matter of law.”

Grasping for proverbial straws, the court reveals that,

lo and behold, Roland is a ‘‘businessman.’’* From this

21 This evidence was: that Starnes and Roland were seen together

in Roland’s bar “long before the arson was contemplated”; that

Roland was the “middle man” who hired the “torchers”; and that

Roland was in phone contact with Starnes. (App. A, p. 5)

22 See Jackson v. Virginia, 443 U.S. 307 (1979), discussed at p.

12, supra.

28 There was evidence Roland operated a tavern and conducted

a legitimate demolition business. (App. A, p. 2) From this, the

court presumes facts essential to establish Roland’s state of mind

as to the Illinois offense underlying the RICO offense.

The status of being “a businessman” is not sufficiently defined as

a term of art in legal usage to warrant what the court has done

here. The record does not contain adequate evidentiary facts con-

cerning Roland’s “businessman-hood” to justify the tremendous

mental icaps indulged in by the reviewing court.

fact—whatever it may mean—the court proceeds to pre-

sume ‘‘he knew that commercial buildings usually are in-

sured,’’** and—presumption upon presumption—‘‘that it

must have been obvious to Roland that Starnes would not

be paying him to cause him [Starnes] great financial loss

by burning his own business down for some farfetched pub-

lic relations gimmick, or any other reason, unless Starnes

had insurance to cover the property loss and otherwise

make it all financially worthwhile.’’ *°

The Seventh Circuit’s indulgence in this presumption,

necessary to affirm petitioner’s conviction, is constitution-

ally infirm for at least two reasons:

First, there is no rational connection between the fact

proved and the fact presumed, rendering the presumption

violative of due process of law. See, e.g., Leary v. United

States, 395 U.S. 6 (1969). This is particularly conspicuous

here, where the accoutrements of the ‘‘proven’’—.e., being

a ‘‘businessman’’—are undefined.”

Second, the court’s decision amounts to rewriting the

Illinois statute, a diversion no federal court is entitled to

practice under any healthy approach to federalism.”

24 App. A, p. 5.

25 App. A, pp. 5-6. The court also notes that there was no sug-

gestion from the testimony that Roland was surprised an insurance

claim was involved. However, this negative inference from a lack

of suggestion, arising several weeks after the blaze, contributes

nothing to the hard facts.

26 See footnote 21, p. 21, supra.

27 See Jackson v. Virginia, supra, 443 U.S. at 324 n.16.

By creating such unwarranted inferences, nay, presump-

tions, concerning circunstances from which a person may

be assumed to know that someone else’s property is in-

sured, the court has rewritten the Illinois statute. Under

the court’s interpretation of the evidence, ‘‘intent to de-

fraud an insurer’’--an essential element of the offense of

arson under Illinois law, conspiracy to violate which is,

here, the basis of the RICO offense—automatically exists

whenever a commercial building is involved and the ac-

cused is a ‘‘businessman,’’ whatever that may be.

Such a reading of the statute effectively eliminates the

requirement of proof that Roland knew the fire was caused

with intent to defraud an insurer. There is no suggestion

that any Illinois decision ever has so construed the section.

The federal court is not the proper vehicle to rewrite the

ITlinois statute.

We realize this Court is inundated with petitions for

certiorari, and can expect that claims of insufficiency of

the evidence to sustain conviction are usually regarded as

not worthy of review. But this is not a ‘‘garden variety”’

insufficiency claim; rather, it involves the improper use of

an unconstitutional presumption, formulated by the fed-

eral court in an unwarranted revision of State law. Due

to the ever-increasing use of RICO by federal prosecutors,

it behooves this Court to nip in the bud the dangerous

practice reflected by the instant opinion.

Petitioner’s constitutional rights as delineated by Brady

v. Maryland, 373 U.S. 83 (1963), and/or his rights under

the Jencks Act, 18 U.8.C. 3500, were violated, where gov-

ernment witness Shurman—an indicted co-defendant who

said he participated in the burning — testified he made

statements to FBI agents while they were taking notes,

and the prosecutor stated the defense “has everything the

U.S. Attorney has,” not negating that the witness’ state-

ments might have been in the possession of the police or

FBI. Under these circumstances:

A. The prosecutor’s response was inadequate to safe-

guard petitioner’s rights;

B. The reviewing court may not avoid deciding this

issue on the basis there was nothing to suggest that

the notes could be in some way material to issues

involved in the case, where the defense did not have

access thereto because of the prosecutor’s inade-

quate response, and the witness in question was a

crucial government occurrence witness.

Government witness Shurman was one of the ‘‘testify-

ing torchers.’’ He had been interviewed on a number of

occasions (possibly ten) by the FBI, on at least three or

four of which notes were taken by his interrogator. (Tr.

314-15) When the defense demanded production of such

notes, the government attorney responded:

‘‘They [the defense] have every piece of information

that the United States Attorney’s Office has, Your

Honor .. .”’ (Tr, 315)

Although defense counsel argued that the witness said

there were more, the court, accepting the prosecutor’s

statement as relieving the government of any further re-

sponsibility, violated petitioner’s rights under the Jencks

Act (18 U.S.C. 3500) and as delineated by Brady v. Mary-

land, 373 U.S. 83 (1963).

The prosecutor’s statement, qaoted above, does not ne-

gate that notes taken per Shurman’s testimony may have

existed in the possession of the police or FBI, 1.e., a prose-

cuting agency other than the U.S. Attorney’s Office as such.

Such possibility being a real one, the government’s burden

was not discharged.

It makes no difference if the withholding of possibly

exculpatory evidence is done by officials other than the

prosecutor himself. Barbee v. Warden, 331 F.2d 842, 846

(4 Cir. 1964); see Pyle v. Kansas, 317 U.S. 213 (1942);

Curran v. Delaware, 259 F.2d 707 (3 Cir. 1958).

Since the witness Shurman’s testimony, uncontradicted,

established that notes were taken when he was being in-

terviewed by the FBI, it was incumbent on the government

to produce same to allow the petitioner to determine

whether they qualified as ‘‘statements’’ discoverable under

the Jencks Act. Similarly, not until the notes could be

viewed could the determination be made whether or not

they contained possibly exculpatory material within the

purview of Brady, supra.

Since a defendant's right to material pursuant to Brady

principles and under the Jencks Act extends to material

in the possession of law enforcement personnel beyond

merely the prosecutor himself, the prosecutor’s statement

in the case at bar, that the defense had been provided with

everything the U.S. Attorney’s Office has, was insufficient

to safeguard petitioner’s rights.

In United States v. Harrison, 524 F.2d 421 (D.C. 1975),

the court held that rough interview notes taken by FBI

agents interviewing key witnesses fall within the category

of potentially discoverable materials required to be pre-

served and produced. Although the court did not see fit

to impose sanctions under the circumstances, it clearly

held such notes producible, in the course of a scholarly

opinion considering, inter alia, the interrelationship be-

tween the Jencks Act and the constitutional requirement

as set forth by this Court in Brady, supra.

The Seventh Circuit’s position that nothing in the rec-

ord suggests the notes could be in some way material to

the issues involved in the case, (App. A, p. 12), is belied

by Shurman’s crucial position as a prosecution occurrence

witness coupled with Shurman’s own testimony that FBI

agents were taking notes while interviewing him. It must

not be defendant’s burden, in these circumstances, to

demonstrate materiality; common sense is stymied if in

such event there is not, at least for present purposes, a

preliminary inference of materiality, based on the witness’

testimony and position in the case.

And the reviewing court’s gratuitous assumption that

the notes did not come within the scope of the Jencks Act,

(App. A, p. 13), is similarly unrelated to reality, in terms

of the factual situation here spread of record.

The Seventh Circuit declines to reach the issue, claim-

ing insufficient factual basis whereby to rule. (App. A, p.

12) This Court should grant certiorari, not only to resolve

the important constitutional and statutory issues here

raised with respect to the sufficiency of the prosecutor’s

response, but also to require the federal reviewing courts

to decide ripe issues.

Because the trial court did not adequately protect peti-

tioner’s rights, once it became evident that government

witness Shurman’s statements to the FBI were the sub-

ject of notes taken by FBI agents, and erroneously ac-

cepted the prosecutor’s pronouncement that the defense

had been given everything the prosecutor had, as satis-

fying the prosecutor’s burden under the applicable legal

authorities, petitioner was deprived of a fair trial. There

is no way of knowing whether possibly exonerating ma-

terial may have been contained in the notes in question.

Petitioner should therefore be afforded a new trial.

CONCLUSION

For any or all of the foregoing reasons, certiorari should

be allowed; and upon consideration of the merits, petition-

er’s conviction should be reversed.

Respectfully submitted,

Juutrus Lucius KEcHELEs

CAROLINE JAFFE

Attorneys for Petitioner

APPENDICES

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 80-1437, 80-1438

Unitep States or AMERICA,

Plaintiff-A ppellee,

Vv.

Nosuie R. Starnes and Ciirrorp Rouanp,

Defendants-Appellants.

Appeal from the United States District Court for the

Eastern District of Mlinois, Benton Division.

No. 78-Cr-02018—James L. Foreman, Judge.

Arcuep Novemser 7, 1980—Decinep Marcu 20, 1981

Before CumMines, Woop, Circuit Judges, and CAMPBELL,

Senior District Judge.*

Woop, Circuit Judge. Defendants Noble Starnes and

Clifford Roland appeal from a jury verdict that found

them guilty of violating 18 U.S.C. § 1962(d), a provision

of the Racketeer Influenced and Corrupt Organizations

Act (RICO). The indictment charged that Starnes and

Roland violated RICO by conspiring to engage in a

pattern of racketeering in connection with a scheme to

commit arson with intent to defraud an insurer, in

violation of Illinois law. The arson consisted of setting

fire to a building that housed Tri-No Enterprises, Inc., a

* Honorable William J. Campbell, Senior District Judge of the

Northern District of Illinois, is sitting by designation.

App. 2

business »: which Starnes was president. In addition,

the jury found Roland guilty on a separate count of

violating the Travel Act, 18 U.S.C. § 1952(a), by travelling

across state lines to commit the arson.’

Defendants do not contest that they arranged to set

the fire and that Starnes filed a claim for the resulting

damages with Tri-No’s insurer. Instead, Starnes and

Roland argue that the evidence is insufficient to establish

the intent necessary to sustain their convictions. Alterna-

tively, they contend that if the requisite intent existed a

RICO prosecution cannot be brought in connection with a

single instance of arson. Defendants also argue that their

rights were violated when the prosecution failed to procure

for them handwritten notes allegedly taken by an FBI

agent while questioning a witness. In addition, Starnes

and Roland claim that the district judge was unfairly

biased against them, and Starnes asserts that he failed to

receive effective assistance of counsel. We affirm.

In 1977, Roland operated a tavern in Gary, Indiana,

and also conducted a legitimate demolition business.

During December of that year, Roland told Gerald

Shurman about a friend of Roland’s who wanted to set

fire to an office in Illinois in order to destroy records

contained in the office. Shurman is a former policeman

who was convicted of a felony prior to the events in this

case. He had on occasion worked with Roland in the

latter’s demolition business. Roland offered Shurman

approximately two thousand dollars in return for his

services in setting the fire. Shurman enlisted the aid of

1Starnes was sentenced to six years imprisonment and fined

$5000.00. Roland received the same sentence as Starnes on the

RICO charge, and a concurrent term of five years imprisonment

and $5000.00 fine on his conviction under the Travel Act.

App. 3

an acquaintance, Donald Murphy,? and the two men met

with Roland at the latter’s tavern to work out the details

for the destruction of the office. During the conversation

at the tavern, Roland received and made telephone calls

purportedly to the individual who wanted the office burned.

Telephone toll records introduced at trial showed that

the calls were made to and from a telephone subscribed

by Starnes in Texas.

As a result of the meeting, Shurman, Murphy and Ro-

land agreed to travel to southern Illinois where they would

set the fire as discussed. They anticipated that the fire

would be blamed on the United Mine Workers who were

on strike in southern Illinois at the time. The union mem-

bers worked for some of Tri-No’s suppliers, but not di-

rectly for Tri-No. It was agreed that the fire had to be

set soon, since there was news that the strike would end

within a few days.

The three men purchased thirty gallons of flammable

lacquer thinner with money supplied by Roland, and set

out from Gary at dawn for their destination,* a building

in the Royal Oaks business complex in Herrin, Illinois.

Starnes greeted them when they arrived at the building.

Shurman recognized Starnes as a person he had seen be-

fore with Roland at Roland’s bar.

Starnes informed them that he wanted the entire build-

ing destroyed rather than just a single office. The men

removed a number of items from the building and obtained

additional flammable liquids. They delayed igniting the

fire until darkness, leaving Starnes the opportunity to

board an airplane flight out of state in order to establish

an alibi. The fire then was set.

Starnes had increased his insurance coverage on the

building shortly before the fire. Two of Tri-No’s

2Shurman and Murphy testified at trial. They were named

with Roland in both Counts of the indictment. Shurman pleaded

guilty to Count I. Murphy pleaded guilty to Count II. Charges

on the remaining Count for each of the men were still pending

at the time of trial.

* The exact destination apparently was kept from Shurman and

Murphy until they were nearly there.

App. 4

creditors testified that Tri-No was not paying its bills to

them and that the creditors had filed suit to recover the

money due.

II.

A. Roland first argues that his actions did not con-

stitute a crime because, he says, the government did not

prove that he helped set the fire with the intent to de-

fraud an insurer, as required under relevant Illinois law.

Ill. Rev. Stat. Chap. 38, § 20-1(b).* Starnes contends that

he also did not have the requisite intent, and that even

if he did he cannot be convicted of conspiracy since none

of the others thought that the office fire was started for

the purpose of defrauding Starnes’s insurer. He argues

that he cannot be convicted for conspiring to defraud an

insurer with people who do not possess the requisite intent

to commit the crime. Defendants’ contentions thus depend

= whether or not they possessed the intent required by

aw.

Circumstantial evidence may be used to prove a defen-

dant’s intent; indeed, that usually is the only evidence

available to show intent. United States v. Haldeman, 559

F.2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977) ;

People v. Berland, 74 Ill. 2d 286, 308 (1978) (arson case).

There was sufficient evidence to show Starnes’s intent

to defraud the insurance company. His business was in

need of cash to pay its bills. Starnes, who was president

of Tri-No, was well aware that the building was insured

and that he recently had increased the insurance

coverage. A successful fire was a convenient solution to

* Ill. Rev. Stat. Chap. 38, § 20-1 (“Arson”) provides, in pertinent

part:

A person commits arson when, by means of fire or explosive,

he knowingly :

* + -

(b) With intent to defraud an insurer, damages any property

or any personal property having a value of $150 or more.

App. 5

his financial problems. He had an adjuster file a claim

with the insurer after the fire, even though he was aware

he had no basis for the claim under the pelicy since he

was responsible for the fire being set. Taken together, this

was ample evidence from which the jury could infer that

Starnes possessed the requisite intent. See generally, Peo-

ple v. Berland, supra, 74 Ill. 2d at 308-09.

Our attention turns, then, to whether the evidence sus-

tains the jury’s determination that Roland organized the

setting of the fire with intent to defraud an insurer and

thus conspired with Starnes and the others as charged.

As with Starnes, we conclude that the evidence was suffi-

cient to sustain the jury verdict.

Shurman testified that he had seen Starnes and Roland

at the latter’s bar long before the arson was contemplated.

Roland was the ‘‘middle man’’ in this operation and

played the key role in obtaining the services of those who

would set the fire. He was in telephone contact with

Starnes while Shurman and Murphy laid plans with him

for burning the office. This evidence suggests that Roland

was privy to Starnes’s reasons for setting the fire.

In addition to the evidence regarding Roland’s rela-

tionship with Starnes, there are other circumstances

from which the jury could infer Roland’s criminal intent

as charged. Roland was a businessman and it is rea-

sonable to conclude that from his own experience he

knew that commercial buildings usually are insured.

The jury was justified in concluding that Roland would

know that Starnes expected to recoup his losses on the

building by collecting insurance money. Setting fire to a

building, even if intended to be confined only to records

in a single office, entails tremendous risk of financial

loss, especially considering the amount of flammable

liquid the conspirators originally purhcased. A jury

could reasonably infer that it must have been obvious to

Roland that Starnes would not be paying him to cause

him (Starnes) great financial loss by burning his own

business down for some farfetched public relations

App. 6

gimmick, or any other reason, unless Starnes had insur-

ance to cover the property loss and otherwise make it all

financially worthwhile.

Moreover, several weeks after the blaze Roland told

Shurman that the latter would receive full payment

‘after the insurance settlement was made on the build-

ing.’’ The testimony does not suggest that either Shur-

man or Roland expressed surprise that an insurance claim

was involved. Given Rolend’s business background, the

context of his statement to Shurman supplies additional

support for the jury’s conclusion that Roland intended to

defraud Starnes’s insurer.

That Roland told Murphy and Shurman only that the

United Mine Workers were to be blamed for the fire does

not alter the sufficiency of the evidence as to his intent.

Murphy and Shurman did not testify that blame was to

be placed on the union solely for the purpose of making

that organization look bad. Rather, their testimony more

plausibly suggests that the strike provided a convenient

cover for those who burned the Tri-No offices, diverting

attention from the real reasons for the fire. That was why

defendants had to move fast in order to take advantage

of the timing of the strike, which was about to end.

The evidence sustains the jury’s conclusion that Starnes

and Roland intended to defraud Starnes’s insurer when

they conspired to set the fire.

B. Starnes and Roland argue that they could not have

conspired to conduct a ‘‘pattern’’ of racketeering activity

under RICO since a pattern requires at least two separate

racketeering acts as defined by the statute. They contend

that since the offense charged involves a single instance

of arson no ‘‘pattern’’ of racketeering exists in this case.

Acts of racketeering under RICO inelude arsons

punishable under state law by imprisonment for more

than one year, 18 U.S.C. § 1961(1)(A), and crimes indict-

able under federal mail fraud laws or federal laws

that prohibit interstate travel with intent to commit

App.7

arson, 18 U.S.C. § 1961(1)(B). Each of those acts is a

separate instance of racketeering activity under RICO.

When two or more of those acts are connected to each

other in some logical manner so as to effect an unlawful

end, a pattern of racketeering exists. 18 U.S.C. §§ 1961

(5), 1962(d). E.g., United States vy. Stofsky, 409 F.Supp.

609, 614 (S.D.N.Y. 1973). See United States v. Weather-

spoon, 581 F.2d 595, 601 n.2 (7th Cir. 1978). The RICO

provisions are violated when there is a conspiracy to com-

mit more than one of those acts, i.e., a pattern of racketeer-

ing directed at an enterprise's affairs.

Defendants’ argument that RICO cannot apply to a

conspiracy to commit a single arson ignores the statutory

scheme just described. While there may indeed have been

a single scheme or objective of the conspiracy—the arson

—it turned out that several acts of racketeering were con-

templated to achieve that objective. Under RICO, the

conspiratorial objective is a matter different than the acts

contemplated by the conspirators. Those acts in this case

include Roland’s travelling with Shurman and Murphy

from Indiana to Illinois so they could set the fire in order

to defraud the insurer; actually setting the fire in order

to defraud the insurer; and then using the mails to com-

plete the fraudulent scheme. Each is a separate act of

racketeering.

This circuit previously has considered the position

defendants advance. In United States v. Weatherspoon,

supra, the defendant argued that all the mailings for

which she was indicted under RICO arose from a single

scheme to defraud the Veterans Administration, and thus

were not a part of a ‘‘pattern’’ of racketeering. 581 F.2d

at 601-02. The court disagreed, finding no support for

the argument that RICO ‘‘requires[s] a showing of

separate and unrelated schemes, as a precondition for

finding two indictable ‘acts’ under 18 U.S.C. § 1341

[mail fraud] that would constitute a ‘pattern of racketeer-

ing activity’ under [RICO].’’ 581 F.2d at 601 n.2. Thus,

the fact that there is but one objective underlying the

separate acts does not diminish the applicability of RICO

to those acts.

App. 8

Other courts that have considered the application of

the ‘‘pattern’’ provisions of RICO have interpreted the

statute in the same manner as we do. For example, in

United States v. Chovanec, 467 F.Supp. 41 (S.D.N.Y.

1979), the court concluded that a single objective to de-

fraud a single victim constituted a RICO offense, when

the objective was carried out through several incidents of

wire fraud. 467 F.Supp. at 44. Compare United States v.

Parness, 503 F.2d 430 (2d Cir. 1974) (interstate transport

of stolen securities as part of single scheme to defraud).

Cf. United States v. Anderson, 626 F.2d 1358, 1371 (8th

Cir. 1980), cert. denied, ...... US. ...... 49 U.S.L.W. 3617

(No. 80-766 Feb. 24, 1981) (dictum disapproving ‘‘The

Government’s view . . . [which] leads to the conclusion

that almost any two criminal acts affecting interstate com-

merce would fall within the ambit of RICO’’).

We reject defendants’ argument that the acts involved

in this case do not support the jury’s verdict that Starnes

and Roland conspired to engage in a pattern of racketeer-

ing activity.

C. Defendants contend that there existed no legiti-

mate enterprise in the affairs of which they participated

as required by RICO.’ Starnes and Roland argue that

they conspired only to set the fire, which activity they

seek to distinguish from participation in Tri-No’s

business affairs. Their association, they say, was for a

wholly illegitimate purpose. Thus, defendants focus on

an interpretation of RICO that would exclude associa-

tions for purely illegitimate purposes from the coverage

of the statute. Compare United States v. Aleman, 609

F.2d 298 (7th Cir. 1979), cert. denied, 445 U.S. 946

5 The pertinent RICO provision is contained in 18 U.S.C.

§ 1962(c), and reads as follows:

It shall be unlawful for any person employed by or associated

with any enterprise engaged in, or the activities of which

affect, interstate or foreign commerce, to conduct or participate,

directly or indirectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity or collection of un-

lawful debt.

App. 9

(1980) (RICO covers wholly illegitimate enterprises) with

United States v. Turkette, 632 F.2d 896 (1st Cir. 1980),

cert. granted, ...... USS. ......, 49 U.S.L.W. 3525 (No. 80-808

Jan, 27, 1981) (RICO covers only infiltration of legitimate

organizations).

The government maintains here, as it did at trial, that

the ‘‘enterprise’’ involved in this case is Tri-No itself.

The focus of the government’s case is on the conspiracy

as it affected Tri-No’s business operations. Starnes par-

ticipated directly in Tri-No’s affairs, says the government,

since he was president of the corporation and the arson

conspiracy affected business property and insurance cover-

age. Roland was involved indirectly in Tri-No’s affairs,

the government contends, because the damage to the build-

ing was meant to affect the conduct of corporate business.

The government argues that since this case was tried on

the basis of the conspirators’ participation in the affairs

of a legitimate business, there is no reason to consider

whether as association solely for illegitimate purposes

falls within the terms of RICO. We agree with the govern-

ment’s position and conclude that the evidence is sufficient

to establish that Starnes and Roland participated in Tri-

No’s affairs sufficiently to bring them within the grasp of

RICO.°

The evidence shows Roland knew that the arson was

meant in a literal way to affect the conduct of Tri-No’s

business. To begin with, Roland had known Starnes for

some time and was aware from the start that it was Tri-

No’s office complex that was to be the site of the arson.

It obviously is difficult to operate a business from a

burned-out office. Even if we were to assume that the

purpose of the arson was only to embarrass the striking

union by placing blame for the fire upon it—as

defendants argue and we reject—the conspiracy still

® Defendants would fare no better even if we accepted their

promise that this case concerns the activities only of an illegitimate

enterprise. As noted, this circuit has held that RICO covers the

activities of a wholly unlawful association. United States v. Aleman,

supra, 609 F.2d at 304-05. There is ample evidence to sustain the

— on the basis of participation in an illegitimate under-

ng.

App. 10

would be directed to at least one aspect of Tri-No’s busi-

ness conduct: namely, its relations with union-staffed sup-

pliers. As it is, the destruction of Tri-No’s business prop-

erty in order to unlawfully obtain an insurance settlement

bears significantly on the corporation’s affairs, especially

in light of financial difficulties the firm was experiencing.

The participation in the conspiracy of people who were

not on the legitimate payroll of Tri-No does not mean

those people were not participating in its affairs. The

nature of racketeering connections to an otherwise legiti-

mate business suggests that elements outside a company

may assist in obtaining the company’s illegal goals. Thus

‘*(t]}he substantive proscriptions of the RICO statute ap-

ply to insiders and outsiders—those merely ‘associated

with’ an enterprise—who participate directly and indirect-

ly in the enterprise’s affairs through a pattern of rack-

eteering activity. [Citations omitted.] Thus, the RICO net

is woven tightly to trap even the smallest fish, those peri-

pherally involved with the enterprise.’’ United States v.

Elliott, 571 F.2d 880, 903 (Sth Cir.), cert. denied sub nom.,

Delph v. United States, 439 U.S. 953 (1978) (emphasis in

original).

Tri-No was the enterprise involved in this case.

Starnes participated in its affairs directly, including the

arson, as the corporation’s president. Roland’s part in

the conspiracy involved his role in Tri-No’s unorthodox

disposition of its business property and the corporation’s

resulting insurance claim. The acts of racketeering re-

quired the conspirators’ direct and indirect participation

in the conduct of Tri-No’s affairs, and fell within the pro-

scriptions of RICO.’

7Starnes and Roland also contend that application of RICO

enalties is inconsistent with the philosophy underlying a recent

Supreme Court case considering the use of pgp enhancement

provisions in the context of double jeopardy claims. As_ this

court previously has noted, RICO is a penalty enhancement scheme

unique unto itself and must be interpreted in the context of the

evils it seeks to redress—racketeering activity indictable under

separate laws. United States v. Aleman, 609 F.2d 298, 304, 306

(footnote continued)

App. 11

D. Roland claims that he did not travel interstate with

the requisite intent to promote the arson and thus his con-

viction under Count II of the indictment for a violation

of the Travel Act cannot stand. The circumstances of the

conspiracy as discussed earlier show that Roland travelled

from Indiana to Illinois in order to set the fire with the

intent to defraud Tri-No’s insurer. There is sufficient evi-

dence to support Roland’s conviction under Count II of

the indictment.

Il.

A. Roland and Starnes contends that their rights

were violated when the prosecution failed to turn over

the original handwritten notes allegedly taken by an

FBI agent during interviews with the government’s

witness, Shurman. The prosecutor apparently did not

have the notes in his possession even if they still existed.

Defendants contend that this violated their rights under

the Jencks Act, 18 U.S.C. § 3500, and Brady v. Mary-

land, 373 U.S. 83 (1963). They argue that since the with-

holding of exculpatory evidence may be reversible error

even if done by someone other than the prosecutor, the

(footnote continued)

(7th Cir. 1979), cert. denied, 445 U.S. 946 (1980). See generally

W. Hurst, Statutes 1n Court 141-43 (1970). Defendants’

citation of Busic v. United States, 446 U.S. 398 (1980), is in-

apposite in this case.

The Busic case held that if a statute defining a felony provides

for enhanced penalties for use of a weapon in committing the

crime, a sentence given under that statute may not be further

enhanced by gpm of separate statutory provisions permitting

enhanced penalties generally for such use of a weapon. The Court

in Busic did not question the penalty-enhancement provision as

applied to the underlying felony. Nor did the Court question the

constitutionality of the separate penalty-enhancement provision as

applied to a felony law lacking its own enhancement clause.

Double-enhancement is not present in this case. Rather, we deal

here with a single statute aimed at enhancing the usual penalties

available under state or federal law for acts associated with

racketeering. Aleman, supra, 609 F.2d at 306-07. There is no

Busic situation implied by the facts of this case.

App. 12

prosecutor’s statement was inadequate to safeguard their

rights.

During his testimony, Shurman mentioned that Agent

Little had taken notes while interviewing him. The formal

FBI report on those interviews had been turned over to

Roland and Starnes before trial. When defendants sought

production of the original notes to supplement the single

report already obtained, the prosecutor responded that

‘*[t]hey have every piece of information that the United

States Attorney’s Office has, Your Honor, and [the single

report is] the only one we have.’’ The district judge then

told counsel that ‘‘maybe we can have a hearing on it or

something, out of the presence of the jury, of what to do

if [the prosecutors] don’t have it.’’ There is no indication

in the record that defendants ever sought such a hearing,

and none was held. The record also does not disclose any

other effort by defendants to discover whether or not the

notes in fact existed, a doubt implied by the prosecutor’s

comment that he also did not have the notes. Agent Little

was not called by the defense to answer questions on this

matter, although the district court clearly presented that

possibility to defendants. FBI Agent Dueker, the chief

agent on the case, was called as a defense witness but he

was not asked about the existence or whereabouts of the

original notes.

There is nothing in this record that suggests the notes

could be in some way material to issues involved in the

case, as required under Brady. See United States v.

Crowell, 586 F.2d 1029 (4th Cir. 1978). Nor did Roland

and Starnes attempt to determine that the notes were

still in existence and thus obtainable by the prosecutor.

The record here is insufficient to establish an issue as to

a violation of defendants’ Brady rights. We decline to

decide the question. Cf. United States v. Gray, 611 F.2d

194, 197 (7th Cir. 1979), cert. denied, 446 U.S. 911 (1980)

(declining review where factual basis for constitutional

claims not before district court).

The record does not support the contention that the

notes would have been producible under the Jencks Act.

App. 13

That Act would require production in this case only if

the notes were a substantially verbatim transcript of

Shurman’s remarks, or were his own written statements

adopted or approved by him. 18 U.S.C. § 3500(e). If

anything, the record indicates that the notes did not fall

within either category, and thus there was no error under

the Jencks Act in defendants’ failure to obtain the notes.

B. Starnes argues that he was denied the effective

assistance of counsel. The only evidence of ineffective

assistance to which he directs our attention is his counsel’s

jocular comment outside the presence of the jury during

an instruction conference that Starnes’s defense was

‘*temporary insanity.’’

While Starnes is correct that loyalty and respect must

underlie the attorney’s relationship to his or her client,

there is no indication that those qualities were not present

in this case. The offending comment apparently was made

to ease the course of a lengthy discussion on the propriety

of certain jury instructions. It does not represent such an

‘‘utter perversion of the attorney-client relationship’’ that

we need not consider counsel’s actual trial performance.

Messelt v. Alabama, 595 F.2d 247, 251 (Sth Cir. 1979) (at-

tempt by counsel to have additional charges brought

against his client ‘‘in an effort to gain more leverage in

collecting his fees’’).

The record taken as a whole does not indicate that

Starnes’s counsel lacked the expereince or ability to

adequately represent Starnes so as to fail to meet the

‘‘minimum standard of professional representation.’’

United States ex rel, Williams v. Twomey, 510 F.2d 634,

641 (7th Cir. 1975), cert. denied sub nom., Sielaff v.

Williams, 423 U.S. 876 (1976); United States v. Chaussee,

536 F.2d 637 (7th Cir. 1976). To the contrary, the rec-

ord shows that counsel conducted deft examination of

the witnesses, was attentive to and took successful ad-

vantage of opportunities to object to the admission of

damaging evidence, and presented the facts favoring his

client in a thorough and professional manner during

App. 14

opening statements and closing arguments. His state-

ment during the instructions conference does not justify

a finding that Starnes did not have the effective assistance

of counsel at trial.

C. Defendants argue that the district judge’s inquiry

about the possibility of defendants’ pleading guilty de-

prived them of a fair trial. The judge’s comments were

made out of hearing of the jury during a discussion of

the admissibility of certain evidence. The claim of preju-

dice is without merit.

The district judge’s first comment as to the possibility

of a plea, to which he did not receive a clear reply, was

directed at determining whether or not an extensive voir

dire of Shurman would be necessary on the subject of

payments made to him by Roland. The evidence was to

apply to Roland on Count II of the indictment, which did

not name Starnes. Shurman himself had not pleaded

guilty on that Count, although he had pleaded guilty on

Count I.

Judge Foreman was concerned that the evidence, which

could be prejudicial to both Starnes and Shurman, should

not be presented if a plea was in the offing. Nothing in the

trial record or argument on appeal suggests that Judge

Foreman was expressing a view on Roland’s and Starnes’s

guilt.

Shortly after his first question regarding pleas (two

pages later in the trial transcript and still out of the jury’s

hearing), Judge Foreman again asked whether a plea was

likely. This was not unreasonable, since counsel had not

answered him the first time and the evidentiary question

had been only tentatively resolved.

While it is true that a judge’s attitudes may have

subtle as well as overt influence upon a jury, the record

does not indicate the possibility of either sort of influ-

ence to the prejudice of defendants. Judge Foreman’s

remarks were made out of the jury’s hearing, and the

record indicates that his rulings throughout the trial

were even-handed and solicitous of defendants’ rights.

App. 15

Thus, the case before us is unlike United States v. Dellin-

ger, 472 F.2d 340, 386-89 (7th Cir. 1972), cert. denied, 410

U.S. 970 (1973), cited by defendants, where the judge’s

prejudicial comments were made before the jury, pervaded

the trial, and were reflected in less than even-handed evi-

dentiary and other rulings. Compare Bollenbach v. United

States, 326 U.S. 607 (1946) (broad hints to jury, clearly

prejudicial to the defendant, that they must quickly return

a verdict rather than remain deadlocked).

AFFIRMED.

A true Copy:

Teste:

~ Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 16

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

April 21, 1981.

Before

Hon. Walter J. Cummings, Circuit Judge

Hon. Harlington Wood, Jr., Circuit Judge

Hon. William J. Campbell, Senior District Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Nos. 80-1437, 80-1438 vs.

NOBLE R. STARNES and CLIFFORD ROLAND,

Defendants-A ppellants.

Appeal from the United States District Court for the

Eastern District of Illinois, Benton Division.

No. 78-Cr-02018

James L. Foreman, Judge.

ORDER

On consideration of the petitions for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause by counsel for the defendants-appellants Noble R.

Starnes and Clifford Roland, no judge in active service

has requested a vote thereon, and all of the judges on the

original panel have voted to deny a rehearing.

IT IS ORDERED that the aforesaid petitions for re-

hearing be, and the same are hereby, DENIED.

* Honorable William J. Campbell, Senior District Judge of the

Northern District of Illinois, is sitting by designation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.