# Petition — Starnes v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2180%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 826 ## Text tice Supreme Court, U.S. Nn ( i ki LED Ue UY MAY 27 1981 No. ze GIEVAS, In the Suprene Court of the United States Octoser Term, 1980 CLIFFORD ROLAND, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT EDWARD M. GENSON JEFFREY B. STEINBACK 134 North LaSalle #300 Chicago, Illinois 60602 (312) 726-9015 Attorneys for Petitioner Of Counsel: WILLIAM H. STEVENS UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581 QUESTIONS PRESENTED 1. Whether the Court of Appeals erred in concluding that there was sufficient evidence of intent to defraud to sustain Petitioner’s convictions under 18 U.S.C. 1962(d) and 1952(a). 2. Whether the Court of Appeals improperly extended the racketeer influenced and corrupt organizations act in contravention of well recognized rules of statutory inter- pretation, established precedent and principles of double jeopardy, in concluding that the evidence supported the conclusion that Petitioner conspired to participate in the affairs of Tri-No Enterprises, Inc. through a pattern of racketeering activity. INDEX PAGE Questions Presented .......sccsscsiscssscessesasapasassshessemoenseienssacen i Opinion Bebow | ....0:0cs:csossrsecsesssesesscechequnemesetiaisidinatsinipaaniaes 1 SUPIITROUIE - ccchiccinoraresvohnemniiedi 7 2 Constitutional Provisions and Statutes Involved ........ 2 Statement Of te OMB nacccsicssasceensnsariocseemnantsbensotamnineain 4 Reasons for Granting the Writ: 1. The Court of Appeals erred in concluding that there was sufficient evidence of intent to de- fraud to sustain Petitioner’s convictions under 18 U.S.C. 1962(d) and 1952(a) ...0.......ssccccccessccecececserere 6 2. The Court of Appeals improperly extended the racketeer influenced and corrupt organizations act in contravention of well recognized rules of statutory interpretation, established precedent and principles of double jeopardy, in concluding that the evidence supported the conclusion that Peti- tioner conspired to participate in the affairs of Tri-No Enterprises, Inc. through a pattern of racketeering QOUVEEG ....cccccssmnsescntenscainiecscvessiciscnnamibveia 9 Conclusion ...... = snusesiinneaanteliiesiianespiieiaiaalte 13 Appendices : A Order of the District Court for the Southern District of Illinois dated February 15, 1980 ....App. 1 B Opinion of the United States Court of Appeals for the Seventh Circuit dated March 20, 1981 ..App. 9 C Order denying Petition for Rehearing with en bane suggestion dated April 21, 1981 ....... App. 24 iv AUTHORITIES CITED Cases PAGE Huddleston v. United States, 415 U.S. 814 (1974) ........ 11 North Carolina v. Pearce, 395 U.S. 711 (1969) ................ 10 People v. Berland, 74 Ill.2d 286, 385 N.K.2d 649 (1978) 5 People v. McAleer, 34 Ill.App.3d 821, 341 N.E.2d 72 (1st Dist, 1975) .ecccecsssssssese PO A ee Simpson v. United States, 435 U.S. 6 (197) ............ 10, 11 United States v. Elliott, 571 F.2d 880 (5 Cir., 1978) .... 12 United States v. Field, 432 F.Supp. 55 (1977) .......... 12 United States v. Morris, 532 F.2d 436 (5 Cir., 1976) ..... 11 United States v. Nerone, 563 F.2d 836 (7 Cir., 1977) ..... 12 United States v. Parness, 503 F.2d 430 (2 Cir., 1974) .... 11 United States v. Resnick, 299 U.S. 207 (1936) ................ 11 United States v. Sutton, 605 I'.2d 260 (6 Cir., 1979), rehearing en banc granted November 7, 1979 .......... 12 United States v. Weatherspoon, 581 F.2d 595 (7 Cir., 1978) 11, 12 Other Authorities CRIA: OEE sevsinntcnsaspenmsctresinne siauiidiaaanteidaanecieiis 4,11 BP Sie NUD | cccecocnscicnsrietnieainens “ . 2,6 I. MN ccc scenepislnstssntrdeneasiiicsatanascaeticiciieldeden 4 Be CR PLO RICIOD cennncestetvescncemrnsiessntecinemnctamitanseviinn 3,11 Be eres SII Ts EOD siceccésnediicanstisandeccblastoadcnemmeessssionnte 3,12 PAGE 18 U.S.C. 1962(c) _........... 3, 6, 13 18 U.S.C. 1962(d) _.............. ..8, 6, 13 SII IIE ‘vs oihaisecsshicahpcasienuptbihiestoiadjuskaasasdaocsmeensuenda 11 NP I RENT - sasrencsniecsioesusdsneticnsiacatansnition one Fifth Amendment to United States Constitution. ........ 2,10 Illinois Revised Statutes, Chapter 38, Sec. 20-1 ............ 3, 4 Iu the Supreme Court of the United States Octoser TeRM, 1980 No. CLIFFORD ROLAND, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Petitioner Clifford Roland prays that a writ of certiorari be issued to review the judgment of the United States Court of Appeals for the Seventh Circuit. OPINIONS BELOW The order of the District Court for the Southern Dis- trict of Illinois is appended to this petition as Appendix A. The published opinion of the United States Court of ») Appeals for the Seventh Circuit is appended hereto as Appendix B. The order denying Petitioner a rehearing is likewise appended to this petition as Appendix C. JURISDICTION The order of the Court of Appeals was entered on March 20, 1981. Petitioner’s Petition for Rehearing with en bane suggestion, timely filed, was denied on April 21, 1981. The jurisdiction of this court is invoked pursuant to 28 U.S.C. 1254(1) and Rule 20(1) and (4) of the rules of this court. CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED The Fifth Amendment to the United States Constitution provides, in pertinent part: ‘‘No person shall be .. . subject for the same offense to be twice put in jeopardy of life and limb... nor be deprived of = liberty, or property, without due process of law... 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—... **(3) Otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establish- ment, 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.”’ 3 18 U.S.C. 1961 (‘*RICO’’) provides in pertinent part: ‘*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, U.S.C.: . .. Section 1341 (relating to mail fraud), ... Section 1952 (relating to racketeering) .. . ‘*(4) ‘Enterprise’ includes any individual, part- nership, 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 acts of racketeering activity .. .’’ 18 U.S.C. 1962 (‘*RICO’’) provides in pertinent part: ‘*(¢) It shall be unlawful for any person employed 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 con- spire to violate any of the provisions of subsections (a), (b) or (c) of this section.’’ Illinois Revised Statutes, Chapter 38, Sec. 20-1 (‘‘Ar- son’’) 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.’’ STATEMENT OF THE CASE Petitioner Clifford Roland was charged in twe counts of a two count indictment. Count I charged Petitioner, to- gether with Noble Starnes, Gerald Rodney Shurman and Donald Wayne Murphy, with conspiracy to use a pattern of racketeering activity in the conduct of the affairs of an enterprise engaged in interstate commerce, in that Roland, Murphy and Shurman would travel in interstate commerce to commit an arson in violation of Illinois law; that Shur- man and Murphy would commit the said arson; that Starnes, as President of Tri-No Enterprises, Inc., a cor- poration engaged in interstate commerce, would make a false claim for damages on behalf of the said company, under a certain insurance policy; and that Starnes would commit mail fraud in violation of 18 U.S.C. 1341 by caus- ing the use of the mail as part of said conspiracy to de- fraud the insurance company via the false claim. Count II of the indictment charged Petitioner Roland, together with Gerald Rodney Shurman and Donald Wayne Murphy, with travel in interstate commerce with intent to promote, manage, establish, carry on and facilitate the promotion, management, carrying on and establishment of unlawful activity, said unlawful activity being an arson in violation of Chapter 38, Section 20-1(b), Illinois Revised Statutes, all in violation of Title 18, U.S.C., See. 1952(a) (3). Petitioner Roland and co-defendant Noble Starnes were tried together before a jury, the Honorable James L. Fore- man, judge presiding, in the District Court for the South- ern District of Illinois. The evidence at trial is summarized in part I of the Court of Appeals’ slip opinion, appended hereto as Appendix B, and is not repeated here to avoid unnecessary duplication. Additional facts material to the consideration of the questions presented are set forth 5 within the relevant portions of the Reasons for Granting the Writ. At the close of all the evidence, the jury found both Ro- land and Starnes guilty as charged. Motions for judgment of acquittal or, alternatively, for a new trial were denied in a written order attached hereto as Appendix A. Peti- tioner Roland was sentenced on Count I to a term of six years imprisonment and a $5,000 fine, and on Count II to a term of five years imprisonment and a $5,000 fine, the terms of imprisonment and the fines to be concurrent. Petitioner appealea the judgment of the District Court to the United States Court of Appeals for the Seventh Circuit pursuant to 28 U.S.C. 1291. The Court of Appeals affirmed in a judgment and order dated March 20, 1981, attached hereto as Appendix B. Petitioner’s petition for rehearing with en banc suggestion, time!» filed, was denied in an order dated April 21, 1981, attached hereto as Ap- pendix C. The instant petition for writ of certiorari follows. 6 REASONS FOR GRANTING THE WRIT 1. The Court of Appeals erred in concluding that there was sufficient evidence of intent to defraud to sustain Petitioner’s convictions under 18 U.S.C. 1962(d) and 1952(a). The factual basis for the convictions in the present case is a fire in the offices of Tri-No Enterprises, Inc. located in the Royal Oaks Business Complex in Herrin, Illinois. On the basis of this single fire, Petitioner Roland and co- defendant Noble Starnes were convicted of conspiracy to participate in the conduct of Tri-No’s affairs through a pattern of racketeering activity, to-wit: traveling across state lines to commit arson, arson with intent to defraud, and mailing a fraudulent insurance claim with the insurer of the burned premises, all in violation of 18 U.S.C. 1962 (c) and (d). In addition, Petitioner was convicted of a separate count of traveling across state lines to commit the arson in violation of the Travel Act, 18 U.S.C. 1952(a). An essential element of all three alleged racketeering acts, including Petitioner’s violation of the Travel Act, is the intent to defraud an insurer. The Seventh Circuit improperly concluded, on the basis of a highly selective and speculative reading of the facts, that there was suffi- cient evidence from which the jury could infer that both Roland and Starnes possessed an intent to defraud Starnes’ insurance company. The Seventh Circuit concluded that there was sufficient evidence-of Starnes’ intent based on evidence that his busi- ness was in need of cash, he recently had increased his insurance coverage, and he had an adjuster file a claim with 7 the insurer after the fire, even though he was aware that he had no basis for the claim. (Appendix B, at App. 12-13). In fact, there was no evidence that Starnes was in financial difficulties. James Jacoby testified for the government that Starnes had not paid him for the November 1977 portion of a coal shipment. Another government witness, Keith Bodkins, testified that he hauled Jacoby’s coal for Starnes and Starnes owed him for this. Jacoby and Bod- kins never offered any explanation as to why they had not been paid. Jacoby and Bodkins never testified that Tri-No was in financial straits. Starnes’ debts to Jacoby and Bod- kins, by themselves, are not evidence of financial difficulty, they are merely evidence of debts. Without some idea of the reason for the nonpayment or some idea of Starnes’ total income and the nature of his business affairs in Texas and elsewhere, it is impossible to tell whether Starnes was in financial difficulty or not. The government produced absolutely no evidence of such a nature. The Seventh Circuit also ignored the evidence at trial in relying on the fact that Starnes had recently increased his insurance coverage and that a claim was filed with Starnes’ insurer after the fire. In fact, although Starnes did increase his insurance coverage on the Tri-No build- ing, government witness Caveness testified that he, Cave- ness, recommended the increase following the expiration of Starnes’ prior policy. Further, government witness William Boyd, the adjustor who presented the insurance claim to Starnes’ insurer, testified that he, Boyd, contacted Starnes, Starnes did not contact him. In addition, the court overlooked or ignored the testi- mony of government witness Barcley, a police officer, who stated that only hours before the fire Starnes reported to the police threats against his property because of rumors that Starnes was hauling coal from Kentucky. § The evidence considered by the Seventh Cireuit to sup- port its conclusion that Starnes had the requisite intent is nowhere near the evidence considered sufficient in Peo- ple v. Berland, 74 Tll.2d 286, 385 N.E.2d 649 (1978), cited by the court on Page 4 and 5. In Berland, ‘*Prior to the fire the building was two-thirds va- cant. Rent revenues had fallen from $650 per month to $250 per month. The building had been cited for thirty-five violations of the Municipal Code of Chi- cago. The building was losing money, and Berland had tried to sell it on contract on three occasions. The purchasers reneged.’’ While the evidence does show that Noble Starnes knew that the building was insured and the evidence also shows that an insurance claim was subsequently filed, these facts alone are insufficient proof of intent to defraud. A person may certainly destroy his own property, whether insured or not, without fear of criminal liability. One is only criminally liable if he destroys his property with the con- temporaneous intent to injure, cheat or defraud the insur- ance company. The kind of evidence required to prove a contemporaneous intent to defraud, suggested in People v. Berland, supra, and in People v. McAleer, 34 Ill.App.3d 821, 341 N.E.2d 72 (1st Dist., 1975), is utterly lacking in the present case. The evidence against Starnes might be sufficient to prove an act of mail fraud after the fire, but it is plainly insufficient to prove the existence of a con- spiracy previous to the fire. With respect to the court’s conclusion regarding Peti- tioner Roland’s intent, it is only necessary to review the court’s reasoning to see the insufficiency in the proof. The court reasons that Starnes had the requisite intent, Starnes talked to Roland, and therefore Roland probably had the requisite intent. (Appendix B, at App. 13). Further, the court reasons, Roland was a businessman, businessmen 9 know you don’t burn office records for ‘‘some farfetched public relations gimmick,’’ therefore Roland knew that Starnes would make it financially worthwhile by defrauding his insurance company. ‘‘Moreover,’’ the court reasons, ‘‘several weeks after the blaze Roland told Shurman that the latter would receive full payment ‘after the insurance settlement was made on the building,’ ’’ (emphasis added), Appendix B at App. 14, and Roland did not express sur- prise! Proof of this nature is plainly insufficient to over- come the presumption of innocence and establish proof be- yond a reasonable doubt that Roland intended to defraud Starnes’ insurance company when he crossed the Indiana- Illinois border on February 19, 1978, or at any time before or after that date. There is simply no evidence that Peti- tioner intended to do anything more when he traveled to Illinois than help Noble Starnes burn Starnes’ office at his request and with his consent, a wholly innocent and lawfui activity. As there was insufficient evidence to prove Petitioner Roland guilty beyond a reasonable doubt of the offenses of conspiracy and violation of the Travel Act, his convic- tions should be reversed. 2. The Court of Appeals improperly extended the Racketeer Influenced and Corrupt Organizations Act in contravention of well recognized rules of statutory inter- pretation, established precedent and principles of double jeopardy in concluding that the evidence supported the conclusion that Petitioner conspired to participate in the affairs of Tri-No Enterprises, Inc. through a pattern of racketeering activity. The conspiracy convictions in the present ¢ #2 are based on an almost magical foundation. In the opinion of the Court below, the burning of Tri-No Enterprises, Inc. in- volved four offenses: conspiracy to y \rticipate in the 10 affairs of Tri-No, arson with intent to defraud an insurer, interstate travel with intent to commit arson, and use of the mails in furtherance of the scheme to defraud. And yet, in concluding that the evidence was sufficient to sup- port the convictions, the opinion of the Court of Appeals makes it appear as if the only crime committed was burn- ing with intent to defraud an insurer. The baffling nature of the present case, and the opinion below, arises from the unusual identity between the four offenses involved. In view of the identical nature of the offenses involved, Peti- tioner’s conspiracy conviction is clearly inconsistent with the Fifth Amendment prohibition against double jeopardy and the plain language of the Racketeer Influenced and Corrupt Organizations Act regarding participation in the conduct of an enterprise’s affairs through a pattern of racketeering activity. The double jeopardy clause of the Fifth Amendment ‘*protects against multiple punishments for the same of- fense.’’ North Carolina v. Pearce, 395 U.S. 711, 717 (1969). ‘*Cases in which the government is able to prove violations of two separate criminal statutes with precisely the same factual showing . . . raise the prospect of double jeopar- dy.’’ Simpson v. United States, 435 U.S. 6, 11 (1978). In the present case, it is evident that all four alleged offenses are in fact one offense. The hallmark of all three alleged racketeering acts and of the RICO count is the intent to defrand an insurer. Proof of one is proof of all. The opinion of the court below, and of the District Court below attached hereto as Appendix A, make this fact quite clear: upon finding sufficient evidence of an intent to defraud an insurer, the court summarily concluded that the jury could reasonably have found the defendants guilty of all four crimes. The double jeopardy problem presented by the unusual application of the RICO statute in the present case was not even considered by the court below. 11 In addition to the aforementioned conflict with the double jeopardy clause, it is readily apparent that the facts in the present case do not constitute participation in the affairs of an enterprise through a pattern of racke- teering activity within the common meaning of those words. It is equally apparent that the facts in the instant case do not involve activity on the part of organized crime, the original target of the RICO statutes. The court below concluded that RICO applied to the fucts in the instant case based on a narrow interpretation of the definition of racketeering activity in 18 U.S.C, 1961(1) and (5), and a broad interpretation of participation in the affairs of an enterprise. The authority relied on by the court is simply too insubstantial to support the unprecedented application of RICO in the present case, particularly in light of well recognized rules of statutory construction requiring the strict interpretation of criminal statutes in favor of the accused,* and requiring doubt to be resolved against turn- ing a single transaction into multiple offenses.** The unusual nature of the so-called ‘‘pattern’’ of racketeering activity in this case is indicated by a com- parison of the facts in this case with the facts in several other cases. In United States v. Weatherspoon, 581 F.2d 595 (7 Cir., 1978), for example, the court held that several mailings, each of which was an indictable act under 18 U.S.C. 1341, was sufficient evidence of a pattern. United States v. Parness, 503 F.2d 4380 (2 Cir., 1974), involved a pattern of three violations of 18 U.S.C. 2314. United States v. Morris, 532 F.2d 436 (5 Cir., 1976) involved a pattern of several card games involving cheating techniques. * Huddleston v. United States, 415 U.S. 814, 830-831 (1974) ; United States v. Resnick, 299 U.S. 207, 209 (1936). ** Simpson v. United States, 435 U.S. 6, 15 (1978). 12 United States v. Elliott, 571 F.2d 880 (5 Cir., 1978) in- volved a criminal enterprise in a pattern including arson, car theft, fencing stolen goods, murdering a key witness, and dealing in narcotics. Petitioner is aware of no RICO case interpreting as a pattern a single course of conduct such as that in the present case. The Court of Appeals’ reliance on the definitional sec- tion of the RICO Act, 1961(1)(A) and (B), which denomi- nates arson, mail fraud and violations of 18 U.S.C. 1952, as racketeering activity, and the court’s conclusion, based on United States v. Weatherspoon, 581 F.2d 595 (7 Cir., 1978) that ‘‘the fact that there is but one objective under- lying the separate acts does not diminish the applicability of RICO to those acts,’’ ignores the plain meaning of the word ‘‘pattern’’. If the Court of Appeals were correct, then any ‘wo acts would constitute a pattern. Such a result is plainly absurd. RICO applies to the facts in the present case, if at all, only because the definitional section of the statute has assumed a life of its own, divorced from the original intention of the legislature. The Court of Appeals’ conclusion that the burning of the Tri-No offices constituted participation in the affairs of the enterprise is simply not warranted by the ordinary meaning of the word participation. The court might as well have construed an assault and battery as a personal relationship. Further, the court’s conclusion is inconsistent with numerous cases requiring that participation be in furtherance of the enterprise’s purposes. See, for example, United States v. Sutton, 605 F.2d 260, 270 (6 Cir., 1979), rehearing en bane granted November 7, 1979; United States v. Nerone, 563 F.2d 836, 851-2 (7 Cir., 1977). But Cf. United States v. Field, 432 F.Supp. 55 (1977). As the application of RICO to the facts in the present case contravenes the prohibition against double jeopardy 13 and is plainly not warranted by the plain meaning of the RICO Act or any precedent, Petitioner’s conviction for conspiracy in violation of 18 U.S.C. 1962(c) and (d) should be reversed. CONCLUSION For all the foregoing reasons, the Petition for Writ of Certiorari should be allowed to review the instant decision of the United States Court of Appeals for the Seventh Circuit. Respectfully submitted, Evwarp M. Genson Jerrrey B. Srernpack 134 North LaSalle #300 Chicago, Illinois 60602 (312) 726-9015 Altorneys for Petitioner Roland. APPENDIX APPENDIX A IN THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS UNITED STATES OF AMERICA, Plaintiff, vs. Criminal No. 78-02018-01-B 78-02018-03-B NOBLE STARNES, CLIFFORD ROLAND, Defendants. ORDER FOREMAN, Chief Judge: Before the Court are defendants Starnes’ and Roland’s motions for judgment of acquittal, or, alternatively, for a new trial or for arrest of judgment. In July, 1978, the Grand Jury returned a two count in- dictment against defendants Noble Starnes, Clifford Ro- land, Gerald Shurman and Donald Murphy. In Count I, the four defendants were charged with conspiracy to par- ticipate in the conduct of an enterprise through a pattern of racketeering activity in violation of 18 U.S.C. §1962(C) in that defendants Roland, Murphy and aurman traveled across state lines from Gary, Indiana to Herrin, Illinois with the intent to commit arson in violation of Illinois App. 2 Revised Statutes c. 38, §20-1(b); that defendants Murphy and Shurman burned the building in violation of Illinois Revised Statutes c. 38 §20-1(b) and that defendant Starnes caused a false claim to be mailed and filed with the insurer of the burned premise in violation of 18 U.S.C. $1341. Count two charged defendants Shurman, Roland and Murphy with crossing state lines with the intention of committing arson in violation of Illinois Revised Statutes ce. 38 §20-1(b) and that they did in fact commit arson. On January 3, 1979, the defendants Starnes and Roland were tried by a jury in this Court and found guilty of the counts as charged in the indictment.’ Defendants Starnes and Roland now move for judgment of acquittal, or, alterna- tively, a new trial or an arrest of judgment and in support thereof, present three grounds. The defendants first assert that the government failed to produce sufficient evidence to show that the defendants conspired to commit a pattern of racketeering activity. Specifically, they contend that the government failed to prove that the defendants agreed to burn the office com- plex of Tri-No Enterprises for the purpose of defrauding an insurer. The standard by which this Court must test defendants’ motion for judgment of acquittal is whether substantial evidence taken in the light most favorable to the govern- ment, tends to show that the defendant is guilty beyond a reasonable doubt. United States v. Fearn, 589 F2d 1316 (7th Cir. 1978); Glasser v. United States, 315 U.S. 60 (1942). Thus, the trial judge must determine whether upon the evidence, ‘‘giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifi- 1 Defendants Shurman and Murphy pursuant to a plea agreement had previously pleaded guilty to Count I. App. 3 able inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.’’ United States v, Yeoman-Henderson, Inc., 193 F2d 867, 869 (7th Cir. 1952). In Count I, the defendants were convicted of conspiring to participate in the conduct of an enterprise through a pattern of racketeering activity. The gist of this conspir- acy is that the defendants agreed to burn an office complex in Illinois with the intent to defraud an insurer. The de- fendants candidly concede that the government produced sufficient evidence to show that they agreed to leave Indi- ana and travel to Illinois in order to burn the Tri-No En- terprise building. The issue, therefore, is whether the government produced sufficient evidence to show that they agreed to burn the building with the intent to defraud an insurer. Under conspiracy law, it is fundamental that a convic- tion cannot be sustained unless there is proof of an agree- ment to commit the offense. Ingram v. United States, 360 U.S. 672 (1959). Although there need not be proof that the conspirators were aware of the criminality of their objective or each and every detail of the plan, there must be clear and unequivocal evidence of the defendants’ knowledge of the purpose of the conspiracy. Such knowl- edge, however, may be inferred from the circumstances, acts and conduct of the parties. Ingram, supra at 678, United States v. Fellabaum, 408 F2d 220 (7th Cir. 1969). Conspiracy to commit a particular substantive offense can- not exist without at least the degree of criminal intent necessary for the substantive offense itself. Ingram, supra at 678. Thus, in order to be guilty of conspiracy, the de- fendants must know what kind of criminal conduct is in fact contemplated. United States v. Gallishaw, 428 F2d 760 App. 4 (2d Cir. 1970). A mere willing participation in acts with alleged co-conspirators, knowing in a general way that their intent was to break the law, is insufficient to estab- lish a conspiracy. United States v. Purin, 486 F2d 1363 (2d Cir. 1978). In applying these principles to the present case, the Court initially notes that part of the ultimate underlying substantive offense is arson or burning with the intent to defraud an insurer. Thus, in order to assess the sufficiency of the evidence of the defendants’ intent to defraud an insurer, the Court has surveyed the law of arson in Illinois and various other states. In Illinois, as well as several other states, an agent who burns the owner’s building at the request of the owner cannot be guilty of arson. Ill Rev Stat c. 38 §20-1. Thus, if an owner of a building desires to rid himself of a build- ing by burning and can limit the fire to his own building, either he or one he hires may legally do so unless they intend to defraud an insurer. Thus, intent to defraud an insurance company is the very essence of this type of arson. This intent cannot exist without knowledge that the property is insured. State v. Greer, 243 Mo. 599, 147 S.W. 968 (1912). Ordinarily, when one purposely or de- signedly performs an unlawful act, the law presumes that he intends the natural consequences of such act. However, this rule does not apply in arson cases where the building is burned with the consent of the owner because no crime can be committed by the mere burning of the building. Con- sequently, to convict a defendant of arson with intent to defraud an insurer, it is necessary to prove that he had knowledge that the property was insured. Greer, supra at 970. This knowledge may be proven by circumstantial evidence. State v. Bersch, 276 Mo. 397, 207 S.W. 809 (1918). The substance of the evidence in the present case was that defendants Roland, Murphy and Shurman met at de- App. 5 fendant Roland’s bar in Gary, Indiana, on February 12, 1978. At that meeting, these defendants agreed to do a ‘torch job’’ in Southern Illinois after defendant Roland had consulted his ‘friend in Dallas.’’ Toll calls records showed that calls were made from defendant Roland’s bar to defendant Starnes’ phone in Aledo, Texas. Although the term ‘‘torch job’’ was defined as burning a building, defendant Shurman stated that it was understood that it was to be an office fire to destroy records and it was re- lated to the coal miners. Before the meeting was con- cluded, defendant Roland gave defendants Shurman and Murphy $100.00 with which to purchase lacquer thinner. The defendants also agreed that Shurman and Murphy were to be paid $2,000.00 for their services. On February 19, 1978, the evidence showed that defen- dants Roland, Murphy and Shurman left Gary, Indiana and traveled to Christopher, Illinois, where they met de- fendant Starnes. Defendants Starnes and Roland had a conversation and then the four defendants traveled to the building owned by Tri-No Enterprises, Inc., whose presi- dent was Noble Starnes. At that time, defendant Starnes told defendants Shurman and Roland that the whole build- ing had to be destroyed completely, that it was no longer a situation where the office was to be burned. Defendant Shurman testified that he understood the fire was to be blamed on the United Mine Workers. Defendant Starnes then removed various records, office equipment and riding lawnmowers as the other three defendants prepared for the fire. Defendant Starnes then left for the airport in order to give him an alibi. Later that evening defendants Shurman and Murphy burned the building as planned, eluded the police and around 2:00 A.M. the three defen- dants left Southern Illinois and returned to Gary, Indiana, App. 6 Defendant Shurman testified that on the afternoon of the fire he received $1,400.00 and was informed he would receive the balance of the money later. Upon their return to Indiana, defendant Shurman testified that no additional money would be forthcoming because the fire had not badly damaged the building. Defendant Shurmnan testified he later learned that the building had been substantially dam- aged. He thereafter talked with defendant Roland who then indicated that the balance of money would be paid after the insurance settlement on the building was made. The evidence also showed that defendant Starnes was having financial difficulties during this period and shortly before the building was burned, increased his insurance coverage. After the fire, defendant Starnes contracted with Associated Adjusters of Michigan to file a claim with Com- mercial Union Insurance Company of Massachusetts. Upon consideration of this evidence, the Court finds that it was sufficient for the jury to infer that the defen- dants agreed to burn the building with the intent to de- fraud an insurance company. Defendant Starnes was presi- dent of Tri-No Enterprises and procured the services of his friend, Mr. Roland, to aid him in setting the fire. De- fendant Starnes was having financial difficulties and in- creased his insurance coverage. Before the fire, he re- moved numerous items from the building and emphasized that the building must be completely destroyed. After the fire, he contacted a private adjustor to file an insurance claim. Defendant Roland was a friend of defendant Starnes and he secured the services of Shurman and Murphy to aid him in the project. Defendant Roland coordinated the project and drove from Indiana to Southern Illinois where they met defendant Starnes. Upon their return to Indiana, defendant Roland informed Shurman and Murphy no addi- App.7 tional money would be forthcoming because the building had not been badly damaged. Finally, defendant Roland later told Shurman that the balance would be paid upon receipt of the insurance money. Similarly, the Court also finds sufficient evidence for the jury to infer that defendant Roland, along with Shur- man and Murphy, crossed state lines with the intent to burn defendant Starnes’ building for the purpose of de- frauding an insurer. Accordingly, the defendants’ motions for judgment of acquittal for lack of sufficient evidence is DENIED. The defendants next assert that the evidence fails to show that the defendants conspired to commit a pattern of racketeering activity. The pattern of racketeering ac- tivity charged is that the defendants agreed to travel from Indiana to Illinois with intent to commit arson, that they committed the arson and that a false insurance claim was sent through the mail in order to defraud the insurer. Thus, the defendants’ claim that the one series of transac- tions, although technically three violations, is insufficient to constitute a pattern. This Court disagrees with that conclusion. 18 U.S.C. §1961(5) defines a ‘‘pattern’’ of racketeering activity as at least two acts of racketeering activity. Racketeering activity is defined in 18 U.S.C. §1961(1) as ‘fany act... involving... arson... chargeable under state law and punishable by imprisonment for more than one year; any act which is indictable under . . . section 1341 (relating to mail fraud), . . . section 1952 (relating to racketeering).’’ Accordingly, the defendants engaged in a pattern of racketeering activity within the meaning of 18 U.S.C. §1961(5) because they jointly committed two or more acts of ‘‘racketeering activity.’’ See, United States v. Weatherspoon, 581 F2d 595 (7th Cir. 1978). App. 8 Finally, the defendant Roland has moved for an acquit- tal, or alternatively, a new trial because he contends that the government failed to prove that the defendants par- ticipated in the conduct of an enterprise. The Court also disagrees with this contention. The evidence at trial showed that Tri-No Enterprises, Inc., was a corporation which transacted business in interstate commerce. Defen- dant Starnes was the president of Tri-No Enterprises, Ine., and Tri-No was the contracting party on the insur- ance policy. Defendant Roland conspired with defendant Starnes and apparently was to be paid out of Tri-No funds. Consequently, both defendants participated either directly or indirectly in Tri-No’s affairs through a pattern of racketeering activity. United States v. Elliott, 571 F2d 880 (5th Cir. 1978). In sum, defendants’ motions for judgment of acquittal or for a new trial or for arrest of judgment are DENIED. IT IS SO ORDERED. DATED: Feb. 15, 1980, /s/ James L, Foreman CHIEF JUDGE App. 9 APPENDIX B Nos, 80-1437, 80-1435 Unitep States or America, Plaintiff-Appellee, v. Nose R. Starnes and Cuirrorp Rovanp, Defendants-Appellants. Appeal from the United States District Court for the Eastern District of Illinois, Benton Division. No. 78-Cr-02018—James L. Foreman, Judge. ArGcuEep Novemser 7, 1980—Decipep Marcu 20, 1981 Before Cummineos, 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. 10 business of 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 damage 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. I, 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 * Starnes 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. 11 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. arges 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. 12 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 on whether or not they possessed the intent required by law. 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 ‘Til, 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. 13 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 policy 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 thet 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 Joss, especially considering the amount of flammable liquid the conspirators originally purchased.