Appendix — Sutherland v. United States

1 337 f

NO. Jan 1 1982

In the „

Supreme Court of the United States

OCTOBER TERM, 1981

GRACE WALKER,

UNITED STATES OF AMERICA,

Respondent

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

APPENDIX TO PETITION

JOSEPH (SIB) ABRAHAM, JR.

Attorney of Record for CHARLES LOUIS ROBERTS

Petitioner Attorney of Record for

P. O. Box D Petitioner

El Paso, Texas 79951-0004 p. O. Box D

(915) 544-7860 79951-0004

(15) 544-7860

ey

AB Letter Service, inc., 327 Chartres K., New Orleans, Le. (504) 584-6668

TABLE OF CONTENTS

A-l

UNITED STATES of America

Plaintiff-Appellee,

v.

Glen SUTHERLAND, Edward Maynard

and Grace Walker,

Defendants-Appellants

No. 80-1422

United States Court of Appeals,

Fifth Circuit

Unit A

Sept. 25, 1981.

Defendants were convicted in the United States

District Court for the Western District of Texas at El

Paso, Harry Lee Hudspeth, J., of conspiracy to violate

Racketeer Influenced and Corrupt Organizations Act.

Defendants appealed. The court of Appeals, Randall,

Circuit Judge, held that: (1) Government established

through direct evidence tht number of specific traffic

tickets were given to two defendants and were later

favorably disposed of by a third, a judge, though

Government did not demonstrate through direct

evidence that any of these tickets was actually given

to judge in conduct of bribe, but such facts were ade-

quately established by circumstantial evidence; (2)

subject to limited exceptions, so long as indictment

alleges facts that amount to single conspiracy it mat-

A-2

ters not, as far as joinder rule is concerned, that

Government fails to introduce at trial any proof of

single conspiracy, and absent exception, allegations of

indictment will be accepted as true in deciding motion

under joinder rule; (3) multiple conspiracy doctrine

precluded joint trial of the two multiple conspiracies

involved in the case on single RICO conspiracy count;

but (4) variance between Government’s indictment on

single conspiracy count and its proof of multiple con-

spiracie was not prejudicial under circumstances of

case; and (5) no prejudicial error was shown either in

evidentiary rulings or in instructions.

Affirmed.

Appeals from the United States District Court

for the Western District of Texas.

Before REAVLEY, RANDALL and SAM D.

JOHNSON, Circuit Judges.

RANDALL, Circuit Judge:

In this case three defendants appeal their con-

victions for conspiracy to violate the Racketeer In-

fluenced and Corrupt Organizations Act (RICO) in

violation of 18 U.S.C. § 1962(d) (1976). The defen-

A-3

dants raise a large number of issues, one of which in-

volves an important RICO question: whether and

when conspiracies that involve the same enterprise

but are otherwise unrelated may be tried together

under a single RICO conspiracy count. We consider

the defendants’ points on appeal seriatim and affirm

their convictions.

I. FACTS

Glen Sutherland, Grace Walker and Edward

Maynard were indicted in January 1980 for con-

spiracy to violate in January 1980 for conspiracy to

violate 18 U.S.C. § 1962(c)' in violation of 18 U.S.C. §

1. 18 U.S.C. § 1962(c) (1976) is 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

enterprises affairs through a pattern of

racketeering activity or collection of unlawful

debt.

Enterprise includes any individual, partnership, cor-

poration, association, or other legal entity, and any union

or group of individuals associated in fact although not a

legal entity.

“Racketeering activity means (A) any act

or threat involving murder, kidnaping, gambl-

ing, arson, robbery, bribery, extortion, or deal-

ing in narcotic or other dangerous drugs, which

is chargeable under State law and punishable

by imprisonment for more than one year;. . .

A “pattern of racketeering activity is defined as follows,

A-4

1962(d).? The indictment charged, in brief, that the

three defendants did knowingly, willfully, and

unlawfully combine, conspire, confederate, and agree

together and with each other, from November 1975

until the date of the indictment, to violate section

1962(c). The conspiracy alleged by the government

consisted of an agreement to associate with and to

participate in the conduct of an enterprise that affects

interstate commerce (the Municipal Court of the City

of El Paso) through a pattern of racketeering activity

(bribery of a state official in violation of state law).*

18 U.S.C. § 1961(5):

Plattern of racketeering activity requires

at least two acts of racketeering activity, one

of which occurred after the effective date of

this chapter and the last of which occurred

within ten years (excluding any period of im-

prisonment) after the commission of a prior act

of racketeering activity.

2. 18 U.S.C. * 1962(d) is as follows:

It shall be unlawful for any person to con-

spire to violate any of the provisions of subsec-

tions (a), (b), or (c) of this section.

3. Bribery of a state official is proscribed by Tex. Penal

Code Ann. § 36.02 (Vernon 1974), which provides in perti-

nent part as follows:

(a) A person committs an offense if he offers, confers,

or agrees to confer any benefit on a public servant, party

official or voter:

(1) with intent to influence the public servant

or party official in a specific exercise of his of-

ficial powers or a specific performance of his of-

ficial duties:

A-5

The alleged conspiracy centers around

Sutherland, who at the time of these events was a

judge of the Municipal Court. According to the

government, the defendants agreed that Maynard and

Walker would each collect traffic tickets from his or

her friends and associates, from his or her friends and

associates, along with the amount of the statutory

fine plus a small premium ($10); that Maynard and

Walker would deliver the tickets to Sutherland, who

would have the cases transfered to his docket and

would then favorably dispose of them; and tht the

money collected would in each case be split between

Sutherland and whichever other defendant collected

and delivered the ticket.

Although the indictment frames the conspiracy

as a single agreement among all three defendants, the

government did not attempt at trial to prove any

agreement between Walker and Maynard. As counsel

for the government explained in response to an objec-

tion by the defendants to the introduction of

coconspiractor hearsay:

(b) A public servant or party official commits an of-

fense if he knowlingly solicits, accepts or agrees to accept

any benefit on the representation or understanding that

he will be influenced in a specific exercise of his official

powers or a specific performance of his official duties. . .

A-6

MR. BO K: . . It's the government’s position

that the conspiracy in this case, the hub of it, is

the judge [Sutherland], and his activities with

these other coconspirators. And there is ab-

solutely no requirement that they know each

other or have knowledge of each other’s ac-

tivities.

THE COURT: Your theory is that it is a

wheel-type conspiracy?

MR. BOCK: Yes, sir, exactly.

THE COURT: That there was no one con-

spiracy but a series of conspiracies?

MR. BOCK: Yes, sir.

Trial Transcript at 656-57.

This view of the government’s case is consistent

with the evidence presented at trial, with the evidence

presented at trial, which we discuss in more detail in

Part II of this opinion. Briefly, we find the evidence

sufficient to support each two separate conspiracies,

one between Walker and Sutherland and the other bet-

ween Maynard and Sutherland. In each case the

evidence is more than sufficient to establish an agree-

ment to participate in the conduct of the Municipal

Court through a pattern of racketeering activity.

However, the government has pointed to no evidence

in the record (and we have found none) that suggests

A-7

that either Walker or Maynard knew or should have known

of the other’s similar agreement with Sutherland. The

government’s evidence as to these two defendants is

entirely unrelated and, in fact places the two con-

spiracies at different periods of time: the specific in-

stances of bribery alleged between Walker and

Sutherland all took place between 1975 and 1977,

while those between Maynard and Sutherland all took

place in 1979.

II. THE SUFFICIENCY OF

THE EVIDENCE

I] All three defendants challenge the sufficiency

of the evidence to support their convictions under 18

U.S.C. §1962(d). First. each argues that the govern

ment failed to establish a ‘‘pattern of racketeering ac-

tivity since the evidence does not specifically

demonstrate ‘‘at least two acts of racketeering activi-

ty.“ as required by 18 U.S.C. §1961(5), supra at note

1.‘ Second, Walker argues that the evidence does not

4. All parties, as well as the district court, refer to the re-

quisite two acts of racketeering activity. Strictly

speaking, the government need not have proven that two

such acts were in fact committed. This case was not

brought under the substantive RICO provisions, but is

instead based on the defendants’ conspiracy to violate

such provisions. The government need not prove in a con-

spiracy case that a substantive crime was actually com-

mitted, but instead need demonstrate that some overt

act was taken in furtherance of a conspiracy to commit a

A-8

sufficiently establish any agreement between herself

and Sutherland. In considering these arguments we

must read the evidence in the light most favorable to

the government, and must reverse the convictions if

we find that any reasonable jury thus reading the

evidence must necessarily have entertained a

reasonable doubt as to the defendants’ guilt. Glasser

v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86

L.Ed. 680 F.2d 353, 360 (5th Cir. 1980), cert. denied, —

U.S. —, 101 S.Ct. 2316, 68 L.Ed.2d 840 (1981).

substantive crime. In particular, the government need

show only that at least one conspirator committed at

least one overt act in furtherance of the conspiracy.”

United States v. Fuiman, 546 F.2d 1155, 1158 (5th Cir.),

cert. denied, 434 U.S. 856, 98 S.Ct. 176, 54 L.Ed.2d 127

(1977). The overt act need not itself consitute a substan-

tive crime; any act, even if seemingly innocent in itself, is

sufficient to support a conspiracy conviction if taken in

furtherance of the conspiracy. E.g. United States v.

Winter, 509 F.2d 975, 982 (5th Cir.), cert. denied, 423 U.S.

825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975); United States v.

Carlton, 475 F.2d 104, 106 (5th Cir.), cert. denied, 414

U.S. 842, 94 S.Ct. 100, 38 L.Ed.2d 80 (1973). In this case

the government's reliance on specific acts of racketeering

activity is understandable, for such evidence constitutes

convincing circumstantial evidence of an agreement to

violate the substantive RICO provision at issue. Still,

however, we find the government’s exclusive reliance on

these acts for the necessary overt act somewhat

perplexing in light of the decision (whether made by the

government or by the grand jury) not to indict the defen-

dants for a substantive RICO offense.

A-9

A. The Requisite Two Act of

Racketeering Activity”

The government proved that a number of

specific traffic tickets were (1) given by traffic

violators to either Walker or Maynard, and (2)

favorably disposed of by Sutherland in his capacity as

municipal judge. Through the testimony of Sally

Kalastro (a co-worker with Walker at the time of the

events in question), the government identified twenty-

five individual tickets that had been accepted by

Walker. Through the testimony of several persons

who submitted tickets to Maynard (including several

bogus tickets prepared for the purpose of the in-

vestigation), the gover: ment identified fifteen in-

dividual tickets that had been acepted by Maynard.

In the case of each ticket, the government introduced

evidence (primarily from Municipal Court records) to

establish its favorable disposition (typically a finding

of not guilty) by Sutherland.

The gist of the defendants’ argument is that the

governments’ evidence fails to prove that any one of

these specific tickets was the subject of bribery. In-

sofar as the government does not point to any

evidence that pertains to any specific ticket and

demonstrates either (1) that the ticket was delivered

by Walker or Maynard to Sutherland, or (3) that

Sutherland favorably disposed of the ticket in ex-

A-10

change for such money. Moreover, the defendants

suggest a reasonable hypothesis of innoncence that is

consistent with the government’s direct evidence as

to any one ticket: a ticket that was merely given to

Walker or Maynard and later favorably disposed of by

Sutherland might have been successfully defended by

an attorney retained by Walker or Maynard.

The fault in the defendants’ argument is that it

ignores the importance of the overwhelming cir

cumstantial evidence introduced by the government.

The government’s case hegins with evidence that per-

tains both to the Walker-Sutherland and to the

Maynard-Sutherland conspiracies. This evidence

establishes, in brief, that the individual tickets at

issue were not processed through normal Municipal

Court procedures. Only five of the forty tickets were

processed through the Traffic Violations Bureau,

which ordinarily assigns individual cases to the

various judges, and only four of the tickets had c m-

plaints drawn up on them, although a complaint is or-

dinarily prepared in each case that is heard by a judge.

Moreover, the government introduced that testimony

of two Municipal Court clerks to the effect that

Sutherland regularly appeared in court with the

violators’ copies of traffic citations and directed the

clerks also testified that they were instructed by

Sutherland not to discuss these irregular practices in

public; that Sutherland paid the clerks for the extra

A-11

work required by such practices; and that Sutherland

ceased the irregular procedures when he discovered he

was under investigation.

The government also introduced substantial cir-

cumstantial evidence with regard to each separate

conspiracy. The government’s case as to the Walker-

Sutherland conspiracy rested chiefly on the testimony

of Sally Kalastro. She testified that beginning in 1975

Sutherland would meet Walker in her office once or

twice a week. On on such occasion in late 1975,

Kalastro interrupted the meeting and observed

Sutherland taking a stack of traffic citations (the

violators’ copies), along with a stack of money, from

Walker. Kalastro testified that after Sutherland left

the office, Walker chastised her for the interruption

but confessed to the ticket-fixing scheme and explain-

ed to Kalastro how it operated.

The government’s case as to the Maynard-

Sutherland conspiracy rested chiefly on testimony

concerning a series of meeting in which persons

cooperating with the F. B. I. in mid-1979 sought help

from Maynard with their traffic tickets (some of which

were written for the purpose of the investigation). In

each instance, Maynard appeared to call someone to

ask the cost of taking care of a ticket; although he did

not refer to Sutherland by name during the phone con-

versations, he referred to his contact as the

A-12

Honorable” and indicated that the contact was the on-

ly judge handling night court, which was in fact

Sutherland’s assignment. Moreover, Maynard refer-

red to his activities as fixing or taking care of the

citations, and insisted on payment in cash. The

evidence suggests that on at least one occasion,

Maynard dialed his own number and merely pretend-

ed to speak with another person as to the price

necessary to take care of the ticket; however, the

government’s evidence shows that seventy-eight

phone calls were in fact made between Sutherland's

and Maynard’s phones during the three month period

of the investigation.

[2] The appropriate standard for our examination

of the sufficiency of the evidence is no different

where—as here—the evidence is largely circumstan-

tial rather than direct. E.g., United States v. Palacios,

556 F.2d 1359, 1364 (5th Cir. 1977); United States v.

Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404

U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). It is clear,

therefore, that a criminal conspiracy may adequately

be established purely on circumstantial evidence. E. g.

Glasser v. United States, supra, 315 U.S. at 80, 62

S.Ct. at 469; United States v. Harbin, 601 F.2d 880,

903 (5th Cir.), cert. denied, 444 U.S. 954, 100 S.Ct 433,

62 L.Ed.2d 327 (1979) United States v. Elliott, 571

F.2d 880, 903 (5th Cir.), cert. denied, 439 U.S. 953, 99

S.Ct. 349, 58 L.Ed.2d 344 (1978). For example, par-

ticipation in a conspiracy to distribute illegal drugs

A-13

can be established solely on the basis of the quantity

of drugs in the possession of the defendants; at some

point the circumstance of enormous quantity excludes

all reasonable hypotheses of innocence despite the

absence of direct evidence of an intent to distribute.

Eg. United States v. Perez, 648 F.2d 219, 221 (5th

Cir. 1981) (The defendants could not, even if they

were chain smokers, personally consume this quantity

of marijuana in their lifetime.)

[3] The government established through direct

evidence that a number of specific traffic tickets were

given to Walker and Maynard and were later

favorably disposed of by Sutherland.. The govern-

ment did not demonstrate through direct evidence

that nay one of these tickets was actually given to

Sutherland in the conduct of a bribe. However, such

facts may adequately be established by circumstan-

tial evidence. In this case, the exceptionally irregular

treatment of the tickets, Walker’s earlier meeting

with Sutherland and admission of a ticket-fixing

scheme, and Maynard’s conversations with several

customers“, constitutes convincing evidence of

bribery as to the individual tickets at issue. We con-

clude that the evidence is more than sufficient to sup-

port the charge.

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B. The Agreement

[4] Walker argues that the government’s evidence

was insufficient to establish an agreement with

Sutherland to violate 18 U.S.C. § 1962(c). Her argu-

ment seems similar to thet advanced by all the defen-

dants with respect to the requiste two acts of

racketeering. In particular, Walker argues that the

government advanced no direct evidence of any agree-

ment between Sutherland and herself.

The government was indeed obligated to

establish an actual agreement to commit a substan-

tive RICO offense. To be convicted as a member of

an enterprise conspiracy, an individual, by his words

or actions, must have objectively manifested an agree-

ment to participate, directly or indirectly, in the af-

fairs of an enterprise through the commission of two

or more predicate crimes. Elliott, supra, at 903 (em-

phasis deleted). In this case, however, we find that the

government did introduce direct evidence of such an

agreement: Kalastro’s testimony as to Walker's ad-

mission of a ticket-fixing scheme between herself and

Sutherland. Moreover, that agreement, like the

predicate crimes discussed above, may be established

by circumstantial evidence. In this case an agreem

is sufficiently established b the large number (twent

five) of individual racketeering acts which the jury

was entitled to find were committed by Walker and

A-15

Sutherland. ‘‘Where, as here, the evidence establishes

that each defendant, over a period of years, commit-

ted several acts of racketeering activity in furtherance

of the enterprise’s affairs, the inference of an agree-

ment to do so is unmistakable.” Elliott, supra, at 903.

III. THE MULTIPLE CONSPIRACY

DOCTRINE AND RICO

A. The Trial of Multiple Conspiracies Under

a Single RICO “Enterprise Conspiracy Count

[5,6] It is now well settled that a material variance

between the indictment and the government’s

evidence is created by the government’s proof of

multiple conspiracies under an indictment alleging a

single conspiracy.’ This multiple conspiracy doc-

5. In this case the government introduced no evidence from

which a jury could ocnicude that a single conspiracy ex-

isted among the defendants. This case should be

distinguished, therefore, from cases in which the record

contains, in addition to evidence to support a finding of a

single conspiracy. If the government sufficiently sup-

ports its charge of single conspiracy, evidence at trial of

multiple conspiracies does not of itself create a material

variance with the indictment; at most, such evidence

creates a fact question and entitles the defendants to a

jury instruction on the possibility of multiple con-

spiracies. See United States v. Elliott, supra, at 905,

United States v. Varelli, 407 F.2d 735, 746-47 (7th Cir.

1969).

A-16

trine’’ is commonly illustrated by the Supreme

Court’s decision in Koteakos v. United States, 328

U.S. 750, 66 S.Ct 1239, 90 L.Ed. 1557 (1946). The in-

dictment in Kotteakos alleged a single conspiracy to

obtain government loans by making fraudulent

representations, but the government’s proof at trial,

by its own admission, demonstrated eight separate

conspiracies. The common element in these con-

spiracies consisted solely of one man who had directed

each group; aside from this single defendant, there

was no connection among the various agareements.

Despite their similar objectives and despite their com-

mon leadership, none of the Kotteakos conspiracies

aided or benefited from the others, and no member of

the various conspiracies (other than the leader) was

aware of the others. As the Court aptly described

these multiple conspiracies, the pattern established

by the government consisted of separate spokes

meeting in a common center but without the rim of

hte wheel to enclose the spokes. 328 U.S. at 755, 66

S.Ct. at 1243. Absent some connection (the rim)

among the various conspirators (the spokes), the

government’s proof established multiple conspiracies.

The Court held that such proof created a material

variance with an indictment charging a single con-

spiracy and, as such, was reversible error unless the

defendant’s substantial rights had not been affected.

328 U.S. at 755-56, 66 S.Ct. at 1243-44. See, e. g.

United States v. Elliott, 571 F.2d 880, 900 (5th Cir.),

A-17

cert. denied, 437 U.S. 906, 98 S.Ct. 3094, 57 L.Ed.2d

1136 (1978); United States v. Baldarrama, 566 F.2d

560, 565-66 (5th Cir.), cert. denied, 437 U.S. 9906, 98

S.Ct. 3094, 57 L.Ed.2d 1136 (1978); United States v.

Cruz, 478 F.2d 408, 413-14 (5th Cir.), cert. denied, 414

U.S. 910, 94 S.Ct. 259, 38 L.Ed.2d 148 (1973).®

6. A strong argument can be made that a variance between

single conspiracy indictment and evidence of multiple

conspiracies should be treated not as a variance pro-

blem at all, but rather as a migjoinder question under

Federal Rule of Criminal Procedure 8&(b). See J. Moore, 8

Moore’s Federal Practice 180614] (1981). Rule

Sb) - which was enacted after the Supreme Court's deci-

sion in Kotteakos—is aimed at precisely the problem fac-

ed in that case: the transference of guilt among defend-

ants who should not have been joined together in a single

trial. The treatment of the multiple conspiracy doctrine

as a variance issue despite the subsequent development

of Rule 8(b) arguably creates a serious anomaly in the

law. If the government indicts several defendants under

a single conspiracy count and yet proves multiple con-

spiracies at trial, a material variance results and the

defendants are each entitled to a new trial if they can

show that their subsantial rights were affected by the

variance. See, e.g. United States v. Elliott, supra, at 900.

If, however, the government indicts several defendants

under multiple conspiracy counts (or alleges facts in the

indictment that amount to multiple conspiracies) and the

district court nevertheless refuses to sever the trial, the

defendants were each entitled to a new trial without any

showing of prejudice, for misjoinder under Rule 8(b) is in-

herently prejudicial. See, e.g., United States v. Lane, 584

F.2d 60, 62 (5th Cir. 1978); United States v. Levine, 546

F. 2d 658, 662 (5th Cir. 1;977); J. Moore, supra. at 18.042].

The end result of the separate development of these two

lines of authority—one under variance doctrine and the

other under Rule8(b)—means that the trial of multiple

conspiracies is treated differently on appeal depending on

whether the government fails to introduce evidence of a

A-18

In this case the government has by its own ad-

mission, as in Kotteakos, introduced no evidence of a

single conspiracy but has instead rested its case on

two distinct multiple conspiracies. The government

did not attempt at trial to prove an agreement among

all three defendants, but instead sought to establish ~

separate conspiracies comprised of (1) Walker and

Sutherland, and (2) Maynard and Sutherland. Like the

single conspiracy at trial (i e., a variance, requiring rever-

sal if substantial rights are affected) or instead fails in the

indictment to allege facts sufficient to constitute a single

conspiracy (i.e. a misjoinder under Rule 8(b), requiring

reversal in all cases).

As difficult as this anomaly may be to justify, we have

no choice but to continue to follow it. In Schaffer v.

United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921

(1960), the Supreme Court held that the propriety of

joinder under Rule 8(b) is to be judged according to the

language of the indictment, not according to the govern-

ment’s proof at trial. So long as the indictment alleges

facts that amount to a single conspiracy, it matters

not—as far as Rule 8(b) is concerned—that the govern-

ment fails to introduce at trial any proof of a single con-

spiracy. See J. Moore, supra, at 18.0613]. Limited excep-

tions to tis rule have been found to exist (1) where the pro-

secution is shown to have acted in bad faith, and (2) where

the government’s indictment under a single count was

from the outset based on an improper interpretation of

the law. Absent one of these exceptions, however,

“allegations of an indictment will be accepted as true in

deciding a Rule 8(b) motion. United State v. Levine,

supra, at 663. See United States v. Salinas, 601 F.2d

1279, 1292 (5th Cir.1979); United States v. Nims, 524

F.2d 123, 126 (5th Cir. 1975), cert. denied, 426 U.S. 934,

96 S.Ct. 2646, 49 L.Ed.2d 385 (1976).

A-19

multiple conspiracies Kotteakos, these agreements

share a common conspirator and similar objectives,

but are otherwise unrelated. The government does

not suggest that either bribery scheme was dependent

on or benefited from the other, and does not dispute

the defendants’ contentions that neither Walker nor

Maynard knew or should have not some interaction

between those conspiractors who form the spokes of

the wheel as to at least one common illegal object, the

‘wheel’ is incomplete, and two conspiracies rather

than one are charged. United States v. Levine, 546

F.2d 658, 663 (5th Cir. 1977).

Of course, the government need not always

demonstrate an actual agreement among the various

conspirators, or even actual knowledge of each other,

in order to establish a single conspiracy. In Blumen-

thal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92

L.Ed. 154 (1947), the Supreme Court recognized that

in some cases the interdependent ns*ure of the

criminal enterprise is such that each conspirator had

to have realized that it extended beyond his individual

role. This form of conspiracy is often described as a

“chain’’ rather than a wheel. Since the success of

the criminal scheme depends on the success of each

link in the chain, laln individual associating himself

with a ‘chain’ conspiracy knows that it has a ‘scope’

and that for its success it requires an organization

wider than may be disclosed by his personal participa-

A-20

tion. United States v. Elliot, supra, at 901, quoting

United States v. Agueci, 310 F.2d 817, 827 (2d Cir.

1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10

L.Ed.2d 11 (1963). The government does not contend

that the case at bar is a chain conspiracy, and the

evidence does not suggest one. Indeed, a chain con-

spiracy would be difficult to imagine on the facts of

this case: while two people may in fact conspire

together to bribe a single judge, there is no reason

why one who has individually so acted must necessari-

ly have assumed that others have also bribed the same

judge.

[7] The government does not defend its joint trial

in this case on the basis of traditional conspiracy law,

ie., by arguing either that the evidence connnected

the spokes of a wheel conspiracy by common

knowledge or agreement, or that the evidence

demonstrates a chain conspiracy. Instead, the

government argues that despite the apparent

relevance to this case of the traditional multiple con-

spiracy doctrine, the defendants were properly tried

together for a single enterprise conspiracy under

RICO. The government contends, in brief, that a

single conspiracy to violate a substantive RICO provi-

sion may be comprised of a pattern of agreements that

absent RICO would constitute multiple conspirscies.

The government contends that this is so even where,

as here, there is no agreement of any kind between the

A-21

members of the two separate conspiracies. Accordi:ig

to the government, these otherwise multiple con-

spiracies are tied together by the RICO enterprise:

so long as the object of each conspiracy is participa-

tion in the same in violation of RICO, it matters not

that the different conspiracies are otherwise

unrelated. Thus, the government argues that it need

not demonstrate any connection between conspiracies

at issue each involved the same RICO enterprise—the

Municipal Court of the City of El Paso.

For this proposition the government relied on

United States v. Elliott, 571 F.2d 880 (5th Cir.), cert.

denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344

(1978). We held in Elliott that group of defendants

who could not have been tried for a single conspiracy

to violate any particular predicate crime could never-

theless be tried for a single conspiracy to violate

RICO. Elliott involved six defendants who had com-

mitted a variety of unrelated offenses with no com-

mon purpose or agreement as to any of the various

crimes We explained:

Applying pre-RICO concepts to the facts of this

case, we doubt that a single conspiracy could be

demonstrated. Foster had no contact with

Delph and Taylor during the life of the alleged

conspiracy. Delph and Taylor, so far as the

A-22

evidence revealed, had no contact with Recea

Hawkins. The activities allegedly embraced by

the illgal agreement in this case are simply too

diverse [unrelated acts involving arson,

murder, theft, drugs, and obstruction of justice]

to be tied together on the theory that participa-

tion in one activity necessarily implied

awareness of others.

571 F.2d at 9:02. Despite these facts, upheld the

government's joint trial of the Elliott defendants on

single conspiracy count. We defined the RICO enter-

prise in Elliott to consist of a least five persons who

joined together to commit crime for profit—‘‘a

myriopod criminal network, loosely connected but

connected nevertheless.” 571 F.2d at 899. Since the

defendant had conpisred together to participate in

that enterprise through a pattern of racketeering ac-

tivity, we upheld their joint trial despite the absence

of an agreement as to any particular predicate crime.

We held, in short, that “[RICO’s] effect in this case is

to free the government from the strictures of the

multiple conspiracy doctrine and to allow the joint

trial of many persons accused of diversified crimes.”’

571 F.2d at 900.

Read out of context, without attention to the

facts of the case or to the court's rationale, Elliott

does seem to supportthe government's position—ie.,

A-23

that the defendants’ participation in the same RICO

enterprise is enough to tie otherwise multiple con-

spiracies together even where, as here, there is no

agreement of any kind between the members of the

two separate conspiracies.’ Indeed, Elliott has been

thus read by some courts and commentators (and, as

so read, has been uniformly critized). See United

States v. Zemek, 634 F.2d 1159, 1169 n.12 (9th Cir.

1980), cert. denied, —U.S.—, 101 S.Ct. 1359, 67

L.Ed.2d 341 (1981); United States v. Boffa, 513 F.

Supp. 444, 471-75 (D.Del. 1980); United States v.

Cryan, 490 F. Supp. 1234, 1239, 1242-44 (D.N.J.), af-

firmed without opinion, 636 F. 2d 1211 (3d Cir. 1980);

7. The government’s interpretation rests on some admit-

tedly broad language in Elliott that suggests that RICO

was intended to alter traditional conspiracy concepts. For

example, we stated in Elliott that

through RICO, Congress intended to authorize

the single prosecution of a multi-faceted, diver-

sified conspiracy by replacing the inadequate

“wheel” and chain rationales wit a new

statutory concept: the enterprise.

571 F.2d at 902. This and similar statements must,

however, be read in the context of the balance of the opi-

nion. In context, as discussed below, this language sug-

gests not that the Congress sought in RICO to change

traditional conspiracy concepts, but that the Congress

sought instead to expand the reach of traditional con-

spiracy charges by establishing a new substantive crime

around which a conspiracy might center.

A-24

C. Bradley, Racketeers, Congress, and the Courts:

An Analysis of RICO,” 65 Iowa L.Rev. 837, 876-79

(1980); Note, Elliott u. United States: Conspiracy

Law and the Judicial Pursuit of Organized Crime

through RICO, 65 Va.L.Rev. 109 (1979).

To put the Elliott holding in its proper perspec-

tive, we quote, our explanation of that holding at

length:

Under the general federal conspiracy statute,

“the precise nature and extent of the con-

spiracy must be determined by reference to the

agreement which embraces and defines its ob-

jects. Whether the object of a single agreement

which embraces and defines its objects.

Whether the object of a single agreement is to

commit one or many crimes, which constitutes

the conspiracy wihc the statute punishes.”

Braverman v. United States,317 U.S. 49, 53, 63

S.Ct. 99, 102, 87 L.Ed. 23 (1942). In the context

of organized crime, this principle inhibited

mass prosecutions because a single agreement

or common objective” cannot be inferred from

the commission of highly diverse crimes by ap-

parently unrelated individuals. RICO helps to

eliminate ths problem by creating a substantive

offense which ties together these diverse parties

and crimes. Thus, the object of RICO con-

spiracy is to violate a substantive RICO provi-

A-25

sion—here, to conduct or participate in the af-

fairs of an enterprise though a pattern of

racketeering activity—and not merely to com-

mit each of the predicate crimes necessary to

demonstrate a pattern of racketeering activity.

The garavamen of the conspiracy charge in this

case is to that each defendant agreed to commit

arson, to steal goods from interstate commerce,

to obstruct justice, and to sell narcotics; rather,

it is that each agreed to participate, directly and

indirectly, in the affairs of the enterprise by

committing two or more predicate crimes.

Under the statute, it is irrelevant that each

defendant participated in the enterprise’s af-

fairs. To find a single conspiracy, we still must

look for agreement on an overall objective.

What Congress did was to define that objective

through the substantive provisions of the Act.

571 F.2d at 902-03 )emphasis added; footnote

omitted).

Elliott does indeed hold that on the facts

of that case a series of agreements tht under

pre-RICO law would constitute multiple con-

spiracies could under RICO be tried as a single

“enterprise” conspiracy. But the language of

Elliott explains that what ties these con-

spiracies together is not the mere fact that they

A-26

involve the same enterprise, but is instead—as

in any other conspiracy—an agreement on an

overall objective“. What RICO does is to pro-

vide a new criminal objective by defining a new

substantive crime. In Elliot, as here, that crime

consists of participation in an enterprise

through a pattern of racketeering activity. The

defendants in Elliott could not have been tried

on a single conspiracy count under pre-RICO

law because the defendants had not agreed to

commit any particular crime. They were prop-

erly tried together under RICO only because

the evidence established an agreement to com-

mit a substantive RICO offense, i.e., an agree-

ment to participate in an enterprise through a

pattern of racketeering activity.

To be sure, the government did not prove

in Elliott that each of the conspirators had ex-

plicitly agreed with all of the others to violate

the substantive RICO provision at issue.

However, the government did prove that, as in

a traditional “‘chain’’ conspiracy, the nature of

the scheme was such that each defendant must

necessarily have known that others were also

conspiring to participate in the same enterprise

though a pattern of racketeering activity. We

found the facts sufficient to demonstarate that

the defendants knew they were directly in-

A-27

volved in an enterprise whose purpose was to

profit from crime, and that each knew that

the enterprise was bigger than his role in it, and

that others unknown to him were participating

in its affairs. 571 F.2d at 904 & n.30. The

agreement among all of the defendants in

Elliott was an implicit one, but it was an agree-

ment nonetheless.

This reading of the Elliott holding is sup-

ported by two or more recent decisions of our

court. In the first case, United States v. Bright,

630 F.2d 804, 834-35 (5th Cir. 1980), we con-

sidered the validity of a single conspiracy in-

dictment under RICO on facts similar to those

now before us. The Bright conspiracy centered

around the sheriff of DeSoto county, Mississip-

pi, who was accused of conpiring with nine

other persons to accept bribes in the conduct of

his office. We found the evidence sufficient to

support each defendant’s conspiracy convic-

tion, but found that one of the defendants with

whom the sheriff had conspired (Bright) had

not agreed in any way with the other eight

defendants, and that consequently the govern-

ment’s proof had created a material variance

A-28

with the indictment.’ In essence, the govern-

ment had indicted the defendants on single con-

spiracy count, but the government’s evidence

had established two separate conspiracies: one

between Bright and the sheriff, and the other

among the remaining eight defendants and the

sheriff.

Our treatment of this variance in Bright

suggests, as does Elliott, that the factor tht

allows that otherwise would constitute multiple

conspiracies to be tried together as one RICO

conspiracy is 4 common agreement to commit

the substantive RICO offense. We explained:

We are aware that the enterprise conspiracy

is designed to avoid the pitfall of traditional

conspiracy law which results in a criminal

enterprise being viewed as several small con-

spiracies rather than one large conspiracy

because of different goals and different par-

ticipants. However, we are also cognizant of

the fact that the RICO conspiracy crime still re-

quires an agreement.

Although we found a material variance in Bright, we held

that the variance did not effect the substantial rights of

the defendants, and we therefore affirmed the convic-

tions. 630 F.2d at 834-35.

A-29

630 F. ad at 834 n.52 (citation ommitted). What

underlay this portion of our decision in Bright,

therefore, was the importance of the actual agreement

among the parties. The mere fact that Bright had con-

spired to violate RICO as to the same enterprise as

was involved in the other established conspiracy—and

had even conspired with a common “hub”, the

sheriff—was insufficiexc justification for a joint trial

of the two multiple conspiracies. What was necessary

to constitute a single conspiracy was, as in Elliott, an

agreement among all of the conspirators.

A second recent case involving a multiple con-

spiracy question in the RICO context is United States

v. Stratton, 649 F.2d 1066 (5th Cir. 1981). The defen-

dants in Stratton argued, in brief that the government

had improperly charged multiple conspiracies under

the guise of a single conspiracy” by defining the RICO

enterprise (Florida’s Third Judicial Circuit) too broad-

ly. Id., at 1074. As in the case at bar, the conspiracy

alleged in Stratton involved the bribery of a state

judge; and, as in this case, the defendants argued that

each agreement to bribe the judge was a separate con-

spiracy. Since some coconspirators had no

knowledge of all the illicit agreements,” the defedants

contended that they could not all be tried in a single

conspiracy count. Jd. We declined specifically to

reach this argument because the facts of the case

undermined the basis oft defendants’ positiion:

A-30

[T]he bribery and other illegal agreements were

part of a single overall scheme, and... the

leading characters in the conspiracy knew of

the others’ illegal activities, and, indeed, con-

spired with one another in furtherance of the il-

legal activities of the enterprise.

Id., at 1073 n.8. In short, all of the defendants in

Stratton had conspired together to commit a substan-

tive RICO offense—to participate in the conduct of an

enterprise (Florida’s Third Judicial Circuit) through a

pattern of racketeering activity (largely bribery). Id.,

at 1074—75.

Although Stratton did not, therefore, decide

whether the government could combine totally

unrelated agreements and over acts in a single [RICO]

conspiracy,’”’ we did express serious doubt as to

the properiety of such a joinder. Taken to its logical

extreme, a rule allowing the joint trial of otherwise

unrelated conspiracies solely on the basis of their rela-

tionship to a common enterprise—the rule which the

government advocates in this case—leads to

ridiculous results:

For example; assuming that our own court—the

United States Court of Appeals for the Fifth

Circuit—was alleged to be the enterprise (as we

assume would be proper under our analysis), we

A-31

question whether an agreement to use a judicial

office for illicit profit making purposes in Fort

Lauderdale conspirators knew of the existence

of the other group.

Id., at 1073 n.8. This extreme hypothetical problem is

not fundamentally different from the case now before

us. Although both conspiracies in the case at bar in-

volved the same judge, it is not that fact which the

government argues ties the two conspiracies together.

Rather, it is each conspiracy’s relationship to the

same enterprise (the Municipal Court of the City of El

Paso) that is said to provide the necessary link. Thus,

the theory urged by the government would bring

together individual conspiracies to bribe different

judges on the same court.

Our review of Elliott, along with Bright and

Stratton, convinces us that the government has read

this authority too broadly. Elliott, does not stand for

the proposition that multiple conspiracies may be

tried on a single enterprise conspirucy count under

RICO merely because the various conspiracies involve

the same enterprise. What Elliottdoes state is two-

fold: (1) a pattern of agreements that absent RICO

would constitute multiple conspiracies may be joined

under a single RICO would constitute multiple con-

spiracies may be joined under a single RICO con-

spiracy count if the defendants have agreed to commit

A-32

a substantive RICO offense; and (2) such an agree

ment to violate RICO may, as in the case of a tradi-

tional chain“ or wheel! conspiracy, be established

on circumstantial evidence, i. e., evidence thatthe

nature of the conspiracy, is such that each defendant

must necessarily have known that others were also

conspiring to violate RICO.

In this case the government has not attempted

to prove that Walker and Maynard agreed with each

other to participate in a bribery scheme with

Sutherland, nor has it contended that the nature of

each defendant’s agreement with Sutherland was such

thta he or she must necessarily have known that

others were also conspiring to commit racketeering of-

fenses in the conduct of the Municipal Court. We

must conclude, therefore, that the multiple conspiracy

doctrine precluded the joint trial of the two multiple

conspiracies involved in this case on a single RICO

conspiracy count. In accordance with Kotteakos and

its progeny, we must reverse the defendants’ convic-

tions if this error affected their substantial rights.

B. The Predjudicial Effect of the

Variance in this Case.

sj We turn next to a consideration of prejudicial

effect of the variance involved in this case. As we note

above, a variance is fatal only if it affects the substan-

A-33

tial rights of the defendants.’

[9] Any analysis of the prejudicial effect of a

variance between the government’s indictment on a

single conspiracy count and its proof of multiple con-

piracies must begin with the Supreme Court’s two

seminal cases on this question—Berger v. United

States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935),

and Kotteakos v. United States, supra. Berger an-

nounced the rule that such a variance is fatal only if it

has affected the substantial rights of the accused, 295

U.S. at 81-82, 55 S.Ct. at 630-631, and went on to find

no such effect on the facts of that case. The con-

spiracy charged by government in Berger consisted of

four persons who were alleged to have agreed together

to utter counterfeit federe] reserve notes; what the

government proved at trial was the existence of two

separate conspiracies, one consisting of two of the

defendants and the other consisting of three of the

defendants, with one defendant common to both

agreements. The Court rested its analysis in Berger

on the reasons that underlie the prohibition of

material variances:

9. This standard, and the discussion that follows, is premis-

ed on the assumption that the multiple conspiracy doc-

trine should be treated as a variance question rather

than a Rule 8(b) ‘‘misjoinder question. The distinction is

crucial in this case, since prejudice is presumed to follow

from misjoinder but not from a variance. See note 6

supra.

A-34

The general rule that allegations and proof

must correspond is based upon the obvious re-

quirements (1) that the accused shall be

definitely informed as to the charges against

him, so that he may be enabled to present his

defense and not be taken by surprise by

evidence offered at the trial; and (2) that he may

be protected against another prosecution for

the same offense.

295 U.S. at 82, 55 S.Ct. at 631. Because nothing in the

record suggested that the defendants had been pre-

judiced in either respect by their joinder, the Court

concluded that their substantial rights had not been

affected. 295 U.S. at 83, 55 S.Ct. at 631.

In Kotteakos, by contrast, the Court did find

that the defendants had been sufficiently prejudiced

to justify revesal. In reaching this decision, the Court

emphasized the size and complexity of the Kotteakos

conspiracies:

On the face of things it is one thing to hold

harmless the admission of evidence which took

place in the Berger case, where only two con-

spiracies involving four persons all told were

proved, and an entirely different thing to apply

the same rule where, as here, only one con-

spiracy was charged, but eight separate ones

A-35

were proved, involving at the outset thirty-two

defendants.

328 U.S. at 766, 66 S.Ct. at 1248-49. It was this fact

that made the joint trial in Kotteakos so serious an er-

ror and distinguished it from Berger. The sheer dif-

ference in numbers, both of defendants and of con-

spiracies proven, distinguishes the situation. Id.

This does not mean, however, that the proper analysis

should hinge on numbers above. A more fundamental

distinction between Kotteakos and Berger can be

found in the Court’s treatment in Kotteakos of the

reasons for the prohibition of material variances.

When the government tries multiple conspiracies

under a single count, an important right is at stake in

addition to those cited in Berger: the right not to be

tried en masse for the conglomeration of distinct and

separate offenses committed by others. 328 U.S. at

775, 66 S.Ct. at 1252-53. Prejudice inhered in the Kot-

teakos trial not because of the number of defendants

or conspiracies per se, but because of ‘‘[t]he dangers of

transference of guilt from one to another across the

line separating conspiracies, subconsciously or other-

wise. . . 328 U.S. at 774, 66 S.Ct. at 1252."

10. This additional reason for the Court's holding in Kot-

teakos puts the multiple conspiracy doctrine in a

category apart from other forms of variances. Although

it does not bring the joinder rules, it does implicate mis-

joinder concerns in addition to those involved in tradi-

tional variance analysis. See note 6 supra.

A-36

The crucial question before us, therefore, is

whether the defendants were substantially prejudiced

by the inherent ‘‘transference of guilt’’ that was the

focus of Kotteakos. Our review of the record con-

vinces us that for several reasons the defendants were

not so prejudiced. We need not decide whether any

one of these reasons would be sufficient to compel

such a result; but taken together, the following facts

lead us to the conclusion that the defendants’

substantial rights were not affected.

First, the number of conspiracies (two) and

defendants (three) is small—even more so than in

Berger. This is not to say that such cases may always

be tried together vithout substantial prejudice vo the

defendants, but we do think that the danger implicit

in the jury’s confusion of different defendants and of-

fenses and of the evidence related to each is diminish-

ed by the simpler pattern of events involved in a

smaller trial.

Second, the evidence as to each conpiracy wa3

clearly distinct. Kalastro’s testimony involved ony

the Walker-Sutherland conspiracy, and the Maynard

11. The defendants do not contend that they were prejudiced

in terms of either traditional variance concern, i.e., that

they either were not adequately informed of the charges

against them or that they were not adequately protected

against future prosecution for the same offense.

A-37

conversations involved only the Maynard-Sutherland

conspiracy. In neither case did the evidence directly

implicate the other conspiracy or specifically con-

tradict any portion of the defense as to the other con-

spiracy. Moreover, the government conceded at trial

the independence of these conspiracies, and did not

seek to link the evidence on each one to the other. This

does not mean that the defendants’ joinder in a single

trial with evidence of each conspiracy to bribe the

same judge obviously makes any hypothesis of in-

nocence more difficult to accept. Still we must con-

clude that prejudice is more difficult to establish

where, as here, the evidence as to each conspiracy is so

distinct as to render confusion between the different

defendants a conspiracies unlikely.

Third, and most importantly, the government

introduced overwhelming evidence of guilt as to all

three defendants, and this evidence would have been

admissable in two separate trials on individual con-

spiracy counts. With respect to the Walker-

Sutherland conspiracy, the government had

Kalastro’s testimony as to Walker’s meetings with

Sutherland, her handing to Sutherland of tickets and

cash, and her confession of the bribery scheme. With

respect to the Maynard-Sutherland conspiracy, the

government had the Maynard conversations in which

Maynard agreed to take care of or fix a number

of tickets for persons cooperating with the investiga-

A-38

tion, and in which Maynard appeared to contact

Sutherland for his help. We recognize that this

evidence, taken alone, allows for plausible hypotheses

of innocence: (1) Walker and Sutherland could argue

that Kalastro had lied, and these defendants did in

fact introduce substantial impeachment evidence; and

(2) Maynard and Sutherland could argue that despite

the content of the Maynard conversations, Maynard

had actually given his collected traffic tickets to an at-

torney or otherwise legally disposed of them.

However, these hypotheses are rendered im-

plausible—indeed, wholly incredible—by the govern-

ment’s additional evidence. As explained in Part II of

this opinion, the goverment’s evidence shows that a

number of individual tickets that were collected by

Walker and Maynard and favorably disposed of by

Sutherland were handled through extraordinarily ir-

regular procedures. By and large, these tickets found

their way into Sutherland’s Court without the help of

the Traffic Violations Bureau and without the usual

formal complaints; Sutherland asked his clerks not to

discuss these irregular procedures in public, paid

them out of his own pocket for their extra work, and

halted such procedures when he learned he was under

investigation. This evidence—which would have been

admissible in each of two separate trials on the mutli-

ple conspiracies involved in this case—most certainly

obscured the importance of any potential

“transference of guilt between the two conspiracies.

A-39

This fact, when considered along with the additional

factors discussed above, convinces us that the defen-

dants’ substantial rights were not affected by their

joinder under a single conspiracy count and that, ac-

cordingly, their convictions need not be reversed for

variance.

IV. THE INDICTMENT

A. Specificity

Sutherland and Maynard each argue that

the indictment was insufficient because it did

not state the alleged offense with adequate

specificity. In particular, they point to the

failure of the indictment (1) to state the specific

places at which the various acts occurred, (2) to

state the specific times at which the various

acts occurred and, (3) specifically to set forth

the state statute that prohibits the acts of

bribery alleged in the indictment.

10] An indictment is not insufficient mere-

ly because some necessary allegation was

stated with less specificity than might have

been used. The sufficiency of an indictment is

determined by practical, not technical, con-

siderations. An indictment is adequate so long

as it

A-40

sufficiently apprises the defendant of what he

must be prepared to meet, and, in case any

other proceedings are taken against him for a

similar offense, whether the record shows with

accuracy to what extent he may plead a former

acquittal or conviction.

Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct.

417, 419, 76 L.Ed.861 (1932), quoting Cochran and

Sayre v. United States, 157 U.S.286, 290, 15 S.Ct. 628,

630, 39 L.Ed. 704 (1895). See e.g., United States v.

Gallipolli, 599 F.2d 100, 103 (5th Cir. 1979); United

States v. Guthartz, 573 F.2d 225, 227 (5th Cir.), cert.

denied, 419 U.S. 966, 95 S.Ct. 228, 42 L.Ed2d 181

(1974).

[11] In this case the indictment clearly states the

offense charged with sufficient specifity. The acts are

alleged to have occurred in the Western District of

Texas, and are said to have consisted of a number of

bribes that occured between November 1975 and

January 1980. Although the indictment does not

quote the Texas bribery statute at issue here, see note

3 supra, it sufficiently tracks the language of that

statute and in fact cites the statute, thus leaving no

doubt as to the nature of the racketeering activity

A-41

alleged in the indictment.'? Moreover, the defendants

have not alleged that they were actually disadvantag-

ed by the indictment’s purportedly inadequate

charge; in the absence of any likely prejudice to the

defendants, a failure to set forth more specifically the

allegations in the indictment is not reversible error.

See United States v. Arteaga-Limones, 529 F.2d 1183,

1188-89 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct.

315, 50 L.Ed.2d 286 (1976).

B. Variance

[12] In addition to their assertion of the multiple

conspiracy doctrine, see Part III of this opinion, the

defendants argue that the government’s prood at trial

varied from the indictment in several other respects

so greatly as to justify a reversal. In the first place,

Sutherland points to the government’s misleading use

12. The indicement specifically charged the defendants with

conspiracy to commit a violation of Title 18, United

States Code, Section 1962(c), involving Section 36.02,

Texas Penal Code. (Emphasis added.) The indictment

alleged that pursuant to the conspiracy Walker and

Maynard would collect traffic citations frem friends and

associates to be disposed of by Sutherland in his

official capacity as judge of the Municipal Court; the in-

dictment further alleged that Sutherland accepted cash

bribes for the purpose of influencing his official

behavior. and that such bribes consisted fo the amount

of the fine plus $10.00, the total to be divided between

Sutherland and whoever had collected and delivered the

ticket.

A-42

of the terms fine and ‘“‘verdict” in the indictment.

Sutherland argues that the indictment’s charge that

Maynard and Walker collect{ed] the amount of the

fine and delivered it to Sutherland for the purpose

of dismissing the offense or entering a verdict of not

guilty’’ amounts at most to an accusation of embezzle-

ment, not of bribery. This conclusion follows, argues

Sutherland, from the usual definitions of fine and

“verdict’’, since the former refers to a monetary

punishment assessed at the conclusion criminal pro-

ceedings and the latter refers to a decision made, after

a trial, by the jury. We disagree. As we note above in

Part IVA of this opinion, and indictment should not

be read with technical precision; instead, an indict-

ment must be read fairly and in its entirety. Thus

read, the indictment in this case undoubtedly accuses

Sutherland of receiving something of value for the

purpose of influencing his official behavior—in other

words, of accepting bribery within the meaning of ap-

plicable state law.

[13] In the second place, each of the defendants

argues that the government’s proof at trial varied

from the indictment’s allegations as to the RICO’s

enterprise at issue. The defendants note that the

indictment charges that the enterprise is the

Municipal Court of the City of El Paso, while the

government’s evidence at trial established that the

Municipal Court was not a separate entity form the

A-43

City of El Paso, and that the interstate purchases

necessary to create federal jurisdiction were made by

the city, not the court. The distinctions do uot,

however, constitute a material variance. First, the

term enterprise, as defined in 18 U.S.C. § 1961(4),

supra at note 1 is broad enough to include a municipal

court which is one part of the city government. See

United States v. Straton, 649 F.2d 106 at 1074-75 (5th

Cir. 1981). Second, the government did not contend at

trial that the city, rather than the court, was the rele-

vant enterprise. Rather, the government used the

city’s interstate purchases toj establish the effect of

the court on interstate commerce; since the fines

assessed by the court were paid into the city’s general

revenue funds, the evidence established that the city’s

interstate purchases were in part financed out of

funds collected by the Muncipal Court.

In, the third place, Walker argues tht certaibn

alleged instances of bribery were raised by the govern-

ment’s proof at trial despite their absence from the in-

dictment. Assuming tht this is so, we still cannot say

tht such variance entitles Walker to a reversal of her

conviction. As we note in Part III of this opinion, a

variance between the indictment and the goverment’s

case only if substantial rights of the defendant are af-

fected. Walker to a reveral of her conviction. As we

note in Part III of this opinion, a variance between the

indictment and the government’s evidence is fatal to

A-44

the government's case only if substantial rights of the

defendant are affected. Walker has not suggested

how much variance could have affected her defense,

and in light of the large number of alleged instances

involved we fail to perceive any prejudice from the

relatively small number of traffic tickets involved in

this purported variance.

V. EVIDENTIARY RULINGS

A. Extrinsic Evidence of a

Witness’ Prior Conduct

[14] Sutherland and Walker each challenged the

district court’s exclusion of certain testimony of Nan-

cy Forbus, a former friend and co-worker of Sally

Kalastro, a key government witness. Forbus was

prepared to testify that Kalastro had admitted to her

that Kalastro had embezzled funds from their

employer. This testimony has two conceivable pur

poses:

(1) to demonstrate Kalastro’s prejudice against

Walker, who (according to the defendants) had

discovered the alleged embezzlement and led their

employer to fire Kalastro; and (2) to demonstrate

Kalastro’s character for truthfulness or un-

truthfulness, since Kalastro had denied the embezzle-

ment on cross-examination.

The admissibility of this testimony is governed

A-45

by Federal Rule of Evidence 680(b). That rule aliows

for extrinsic evidence of specific instances of the con-

duct of a witness only if the evidence is probative of

the witness’ character for truthfulness or un-

truthfulness, not to demonstrate bias or prejudice on

the part of the witness. And, if the testimony is in-

deed relevant to the witness’ veracity, it is then ad-

missible only in the discretion of the court.

In this case the testimony arguably was offered

for a purpose contemplated by Rule 608(b), but under

the circumstances the district court did not abuse its

discretion in refusing to admit it. The testimony ws

also offered at least in part for a purpose not con-

templated by Rule 608(b) ſi. e., to demonstrate pre-

judice), and was merely cumulative evidence both as

to that purpose and as to its legitimate purpose (i. e.,

to demonstrate a character for untruthfulness).'*

Therefore the court did not err when it excluded the

testimony.

13. Forbus also testified that Kalastro hated Walker because

Walker had been responsible for Kalastro being fired;

that Kalastro wanted to get even with Walker; And

that Kalastro’s reputation for truth and veracity was

“very, very bad.

A-46

B. Coconspirator Hearsay

[15] The district court admitted three series of

coconspirator hearsay statements. The first consisted

of statements made by Sutherland to the Municipal

Court clerk regarding plea practices; when introduced,

the court instructed the jury that it could consider the

statements only against Sutherland. The second

series consisted of statements made by Walker to

Kalastro, in which Walker admited and described in

ticket-fixing scheme; after a hearing on the nature of

the conspiracy, the court instructed the jury that

these statements could be considered only agianst

Walker and Sutherland, and not against Maynard.

The third series consisted of taped conversations bet-

ween Mayard and certain individuals who posed as

persons seeking help on traffic tickets each had receiv-

ed; when the tapes were admitted, the court be con-

sidered only against Maynard, not against either

Sutherland or wlaker. Despite these limiting instruc-

tions, the court explained tjo the jury at the close of

the government’s case that they could properly con-

sider those [hearsay] statements with respect to all of

the defendants in this case. Trial Transcript at 1124.

In its charge to the jury at the conclusion of the trial,

the court instructed the jury that coconspirator hear-

say statements could be considered against a defen-

dant if it is established beyond a reasonable doubt,

first, that a conspiracy existed and, second, from

A-47

evidence of is own acts and statements, that the

defendant was one of its members. Trial Transcript

at 1497.

Sutherland argues that neither the statements

argues t lat neigher the statements by Walker nor the

statements by Maynard could have been used against

hin:. Sutherland recognizes that conconspirator hear-

say is admissible under Federal Rule of Evidence

801(d)(2)(E), but contends that the government failed

to make a “sufficient showing, by independent

evidence, of a conspiracy” between Sutherland and

either Walker or Maynard, as required by our decision

in United States v. James, 590 F.2d 575, 580-81 (5th

Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 836,

61 L.Ed 2d 283 (1979). We disagree. Sufficient in-

dependent evidence of conspiracy was introduced with

regard to both other defendants. As to Walker, the

government introduced testimony to the effect that

Sutherland visited Walker’s office once or twice a

week during the time of the events in question, and

‘that on one such occasion Sutherland was observed

taking a stack of traffic tickets and money from

Walker. As to Maynard, the government introduced

evidence to the effect that seventy-eight telephone

calls were made, during the time of the events in ques-

tion, between maynard’s and Sutherland’s phones. In

each case, the government proved taht a significant

number of specific tickets was collected by the

A-48

coconspirator and later disposed of favorably through

irregular proceedings in Sutherland’s court. The

government need not prove a conspiracy by a

preponderance of the evidence in order to admit

coconspirator hearsay statements, but need only in-

troduce substantial, independent evidence of a con-

spiracy at least enough to take the question to the

jury. James, supra, at 581, quoting United States v.

Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 3104, 41

L.Ed.2d 1039 (1974). Under this standard, the

government clearly introduced sufficient evidence of

conspiracies both between Walker and Sutherland

and between Maynard and Sutherland.“

[16] Walker and Maynard argue that their hearsay

statements could not properly be used against each

other, and that consequently the district court er-

roneously instructed the jury that it could so consider

this evidence. We agree that the court’s brief instruc-

tion at the conclusion of the government's case was er-

—

14. Sutherland also claims that the district court failed to

follow the procedure required by United States v. James,

supra, 590 F.2d at 582, at the end of the trial. In par-

ticular, James requires the court, on appropriate motion

at the conclusion of all the evidence, to make a factual

finding as to the. existence and scope of the conspiracy.

Sutherland made no such motion and we therefore decline

to reach this argument.

A-49

roneous, for in that instruction te court allowed the

jury to consider coconspirator hearsay as to all defen-

dants despite the failure of the government to in-

troduce anyevidence of a conspiracy between Walker

and Maynard. We also agree that the court's final

charge to the jury was erroneous, for it allowed the

jury to decide the admissibility of coconspirator hear-

say—a task that undoubtedly belongs to the court.

United States v. James, 590 F.2d at 578-80. However,

it follows from our discussion in Part IIIB of this opi-

nion that these errors did not affect the substantial

rights of the defendant and are therefore not grounds

for reversal. The pattern of agreements and the

evidence introduced by the government was not con-

fusing; the hearsay evidence did not directly implicate

the participants in the conspiracy as to which it was

not properly introduced; and the evidence prpoerly in-

troduced as to each conspiracy was overwhelming. On

this basis we conclude that the district court’s er-

roneous instructions on coconspirator hearsay are not

reversible error.

C. Audio Tapes of the Maynard

Conversations

The government introduced a series of audio

tapes of conversations between Maynard and certain

individuals who posed as persons seeking help on traf-

fic tickets each had received. All three defendants

A-50

now raise a variety of challenges to the district court’s

admission of these tapes, and also challenge the

court’s allownace of transcripts of the taped conversa-

tions.

[17] In the first place, Sutherland argues that the

government did not lay a proper foundation for its

introduction of the tapes, as required by ur decision in

United States v. Biggins, 551 F.2d 64, 66-67 (5th Cir.

1977). Our examination of the record convinces us tht

this is not so. The government introduced the

testimony of Terry Youngblood, an F.B.I. agent, and

of Edward Ortega, and El Paso policeman, who

together supervised the audio tapings at issue; both

Youngblood and Ortega testified at some length as to

the Biggins requisites. Transcript at 632-41; 830-41.

Sutherland states in particular that Maynard was not

identified as a speaker on the tapes. This also is not

so. Transcript at 840-41.

[18] In the second, place all of the endants com-

plain that the tapes were only partially audible. The

record in this case does not indicate that the tapes

were of poor quality and often unintelligible, but that

fact alone does not render them inadmissible. Recor-

dings must be excluded only if the inaudible or

unintelligible portions ‘‘are so substantial as o render

the recording as a whole untrust worthy.” and that

determination is left to the sound of the trial judge.

A-51

United Sttes v. Mendoza, 574 F.2d 1373, 1378 (5th

Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30

L.Ed.2d 258 (1971). We perceive no abuse of discre-

tion in this case.

[19, 20] In the third place, the defendants

challenge the court’s submission to the jury of the

government’s written transcript of the tapes.“ The

15.

The government contends that the transcripts were not

evidence at all, but were merely aids given to the jury

to help them follow the tapes. We disagree. As we ex-

_ plained in United States u. Onori, 535 F.2d 938, 947 (5th

Cir. 19;76), the use of a transcript as a guide is

analogous to the use of expert testimony as a device

aiding a jury in understanding other types of real

evidence. In short, a transcript is evidence of what is

recorded on an audio tape, just as the tape is evidence of

what was said in the original conversation.

The government notes that the transcripts were not

submitted to the jury, along with other evidence, for their

consideration during deliberations. We fail to perceive,

however, why this means that the transcripts were not

evidence. The government has cited no authority, and

we have found none, to support the proposition that inad-

missible evidence, e.g., an unauthenticated transcript,

may be shown to the jury so long as it is not used during

deliberations. In fact, such a rule would seem contrary to

Fed.R.Evid. 103(c), which reads as follows:

In jury cases, proceedings shall be conducted,

to the extent practicable, so as to prevent inad-

missible evidence from being suggested to the

jury by any means, such as making statements

or offers of proof or asking questions in the

hearing of the jury.

- A-52

defendants argue, in brief, that the government failed

to authenticate the transcript in accordance with

United States v. Rochan, 563 F.2d 1246, 1250-52 (5th

Cir. 1977) and United States v. Onori, 535 F.2d 938,

946-49 (5th Cir.1976). We agree that the government

failed adequately to authenticate the transcripts.

First the goverment introduced no testimony that the

transcripts were accurate reproductions of the taped

conversations. Second, the government introduced no

testimony as to the accuracy of the government’s

translation of certain Spanish portions of the conver-

sations. Testimony on both of these counts is

necessary for proper authentication, for the proponent

who seeks to introduce written transcripts of ausio

tapes must introduce some evidence that the

transcripts are accurate—that the words are accurate-

ly reproduced and the voices accurately identified.

United States v. Rochan, 563 F.2d at 1251. Moreover,

it follows from this general rule tht whenthe

transcript contains a translation into English of con-

versations spoken in a foreign language, the propo-

nent must introduce the testimony of a qualified

witness to authenticate and verify the translation. See

United States v. Llinas, 603 F.2d 506, 509 n.3, 510 th

Cir.1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1030,

62 L.Ed.2d 762 (1980).

In this case, however, we cannot find that the

district court committed a reversible error in admit-

A-53

ting the transcripts, for the context in which they

were used makes it clear that no substantial right of

the defendants was affected by the government’s

failure adequately to authenticate the transcripts.

Our conclusion rests on the government’s introduc-

tion of the testimony of two of three persons who par-

ticipated in the taped conversations with maynard,

These witnesses did not specifically testify as to the

accuracy of the transcribed translations, but they did

testify in detail as to the content of the subject con-

versations. In each case the witness’ testimony spells

out a conversation or series of conversations in which

she makes a deal with Maynard pursuant to which she

pas him to take care of or to “‘fix’’ several traffic

tickets—essentially the same conversation as

transcribed off the tapes by the government. Thus,

although the government did not verify the accuracy

of the transcripts, it did introduce independent

evidence of the content of two out of the three subject

conversations. In this context it is clear tht the defen-

dants were not prejudiced by the government’s failure

to verify the accuracy of their transcriptions.“

16. In so holding we do not rely on the government's argu-

went that the defendants were not prejudiced because

they had the opportunity to challenge the accurancy of-

the transcripts. Once the transcript is properly admitted,

it is true that—as with any other evidence—the propo-

nent has no special burden to prove its accuracy, and

that, accordingly, its opponent may fail to challenge such

accuracy only at ‘is peril. See United States u. Onori,

supra, at 949. Still, however, the proponent must meet

A-54

[21] In the fourth place, Sutherland challenges the

district court’s admission of one of the taped conver-

sations on the basis that the necessary consent for the

recording was not properly established. The consen-

ting participant on that tape was Beatrice Rede, who

was hospitalized at the time of the trial. The govern-

ment introduced the testimony of F. B. I. agent

Youngblood as to Rede’s consent, and Sutherland ob-

jected that the consent testimony was hearsay.

Because of Rede’s obvious unavailability as a witness,

however, such hearsay was certainly admissible under

Federal Rule of Evidence 804(a)(4) and (b)(5).

VI. THE CHARGE

[22] The first and largest group of the defendants’

challenges to the district court’s instructions to the

district court’s handling of the multiple conspriacy

problem. In particular, Sutherland and Walker each

argue that the district court erroneously refused to

give any one of a number of instructions that would

the minimal burden of authentication before the

transcript can be admitted. That burden cannot be

satisfied (or its failure rendered harmless) merely

becausue the opponent did not challenge its accuracy. In

short, an opponent’s failure to challenge the weight of the

evidence does not cure the proponent’s failure to

establish the admissibility of the evidence.

A-55

have required the jury to acquit all three defendants if

they found tht the evidence established multiple con-

spiracies despite the indictment’s charge of a single

conspiracy. We disagree. While some instruction

regarding multiple conspiracies may have been ap-

propriate, see note 5 supra, the defendants clearly

were not entitled to the instructjion requested, each of

which required a verdict of acquittal merely because

of the government’s proof of multiple conspiracies in

variance iwth the indictment. See, e.g., United States

v. Ashley, 555 F.2d 462, 467-68 (5th Cir.), cert. denied,

434 U.S. 869 98 S.Ct. 210, 54 L.Ed.2d 147 (1977).

[23] In the second place, Sutherland and Maynard

each argue that the court erroneously omitted an oral

chage stating each overt act alleged in the indictment.

Rather than listing each of the many specific in-

stances

charged in the indictment, the court instructed the

jury to read that portion of the indictment for

themselves. Since the cjourt eplained in its charge tht

the indictment for themselves. Since the court in-

structed the jury to read that portion of the indictment

for themselves. Since the court explained in its charge

that the indictment was not evidence, this instruction

was proper. The mere fact that the judge told the

jury to read the indictment themselves, rather than

reading it to them, could not have prejudiced [the] ap-

pellantſs. United States v. Jones, 587 F.2d 82, 806

A-56

(5th Cir. 1979). Maynard argues further that the court

should have removed from the jury’s consideratjion

those overt acts which the government had not prov-

ed; as we found in Part II of this opinion, however, the

evidence was sufficnet ta support a verdict on any or

all of the a eged overt act.

[24] Third, each of the defendants argues that the

court erroneously refused a requested instruction that

required the jury to be unanimous as to the same

overt acts that formed the basis of their verdict. The

defendants rely for this contention on United States v.

Gipson, 553 F.2d 453 (5th Cir. 1977), in which we

reversed the conviction of a defendant under 28 U.S.C.

§ 2313 (1976) (selling or receivng a stolen vehicle mov-

ing in interstate commerce) because the jury was in-

structed it need not agree as to which of several acts

prohibited by the state and charge in the indictment

(receiving, concealing, storing, bartering, sellng adn

disposing) was established at trial.

While we rejected the charge given in Gipson,

however, we stated that the jury need not unanimous-

ly agree as to which act the government established

wihtin either of to distinct conceptual groupings;

the first consisting of receiving, concealing, and stor

ing, and the second comprised of bartering, selling and

disposing. 553 F.2d at 458. We explained:f

Within each grouping, the acts are sufficiently

A-57

analogous to permit a jury finding of the actus

reus element of the offense to be deemed

“unanimous” despite differences among the

jurors as to which of the intra-group acats the

defendant committed.

Id. See also United States v. Freeman, 619 F. ad 112,

118-19 (5th Cir. 1980), cert. denied,—U.S.—, 101 S.Ct.

1348, 67 L.Ed.2d 334 (1981) jury need not be

unamimous as to whether conspiracy was single or

multiple). We are convinced that in this case the jury

need not specifically have consideed and agreed as to

which of a large number of potential overt acts of

bribery were established by the government. These

acts were not distinguished in any significant respect

and the evidence as to each is remarkably similar.

Therefore this series of alleged acts comprises one

“conceptual group” and the jury need not have

unanimously agreed as to which was the proven.

[25] Fourth, Sutherland and Maynard argue that

certain essential elements of the crime (that at least

jone defendant was associated with the Municipal

court; that the court is a RICO enterprise; and that

the court affected interstate commerce) were not ade-

quately specified in the charge. These elements were

all included and explained in the court’s instructions,

Trial Transcript at 1491-94, but the defendants point

to another portion of the charge, Trial Transcript at

A-58

1495, where the court listed elements of the crimes

without including these requirements. This argument

is frivolous. The court’s instructions should be read in

their entirety. When so read, the cuurt’s charge of the

elements ofthe offense is not rendered inadequate

solely becae the elements were not included together

in a single list. E. g., United States v. Cook, 586 F.2d

572, 579 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99

S.Ct. 2821, 61 L.Ed.2d 274(1979).

[26] Fifth, Walker and Maynard each challenge

the court’s instruction requiring only that at least

one of the conspirators” have committed at least two

of the overt acts described in the indictment.“ The

defendants contend that the court should have in-

structed thejury that each defendant must have com-

mitted at least two predicate crimes in furtherance of

the conspiracy. This argument confuses conspiracy

to commit a RICO offense with the substantive RICO

offense itself. The substantive crime does not require

each defendant to have committed at least two

predicate acts of racketeering activity, but a con-

spiracycharge is based instead on an agreement to do

so; to prove such an arreement, the government need

only demonstrate some overt act, by any defendant, in

furtherance of the agreement. See note 4 supra.

Maynard also argues that this instruction was er-

roneous because it did not stte, in accordance with

Elliott, that each defendant by words or actions,

A-59

must have objectively manifested an agraeement to

participate, directly or indirectly, in the affairs of an

enterprise through the commission of two or more

predicate crimes. Elliott 571 F.2d at 903 (emphasis

deleted). We disagree, for the record shows that the

precise instruction was in fact given by the court.

Trial Transcript at 1496.

VII. PROSECUTORIAL MISCONDUCT

[27] Sutherland and Maynard each argue that

they are entitled to a new trial because of the govern-

ment’s introducton of what the defendants assert was

perjured testimony. Specifically, the defendants point

to the government’s introduction in rebuttal of the

testimony of Betty McAlister, who supported

Kalastro’s testimony as to the existence of a ticket

fixing scheme, and stated tht McAlister had herself

had several tickets fixed by Walker. This testimony

contradicted McAlister’s testimony before the grand

jury, at which time Mcalister had denied the existence

of any ticket fixing scheme and had denied having any

of her own tickets disposed of thereby. Assuming

arguendo that McAlister’s testimony at trial was un-

true, however, the defendants nevertheless are not en-

titled to relief. As we have only recently explained:

Due process is not implicated by the prosecu-

tion’s introduction or allowance of false or per-

A-60

jured testimony unless the prosecution actually

knows or believes the testimony to be false or

perjured; it is not enough that the testimony is

challenged by another witness or is inconsis-

tent with prior statements.

United States v. Brown, 634 F.2d 819, 27 (5th Cir.

1981). The defendants suggest no reason to assume

the government was award of any actual perjury. In

fact, McAlister’s grand jury testimony was available

to the defendants, and did form the basis of substan-

tial cross- examination as to prior inconsistent

statements contained therein. Therefore the defen-

dants have not established any prosecutorial miscon-

duct with respect to McAlister’s testimony.

Sutherland and Maynard also argue that they

are entitled to a new trial because of the government's

failure to disclose exculpatroy evidence in accordance

with Brady v. Maryland, 373 U.. 83, 83 defendants

assert in particular, that the followi information was

not divulged prior to trial: (1) that Kalastro had been

accused by her employuer of embezzlement; (2) that

McAlister had given prior inconsistent testimony

before the grant jury; (3) that the public records of

Sutherland's court did not include any reference to

any traffic citations of Kalastro and certain other

government witnesses; and (4) that certain tickets of

various government witnesses were processed in a

A-61

court other than Sutherland's.

[28] Neither Sutherland nor Maynard specifically

requested any of this evidence before trial. Their

general requests for exculpatory Brady material

must, therefore, be read as if no request had been

made at all. United States v. Agurs, 427 U.S. 97,

106-07, 96 S.CT. 2392, 2398-99, 49 l. Ed. 2d 342 (1976).

In such a case, the government need disclose the infor-

mation only if it creates a reasonable doubt that

would not otherwise exist. Id. 427 U. A. at 112, 96

S. Ct. at 2402. In the context of the overwhelming

evidence introduced by the government in this case,

See Part II of this opinion, this standard clearly is not

met with respect to any of the purportedly withheld

evidence. Moreover, some of this evidence would have

been disclosed by the defendants at the time of the

trial. The defendants at the time of trial. The defen-

dants at the time of trial. the defendants do not sug

gest how a reasonable doubt that would not otherwise

exist might have followed from their earlier receipt

of this evidence.

VII. CONCLUSION

Since we find no reversible error in the defen-

dants’ trial, we affirm each defendant’s conviction

under 18 U.S.C. § 1962(d).

AFFIRMED.

B-1

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT*

No. 80-1422

filed: Nov. 4, 1981

received: Nov. 6, 1981

UNITED STATES OF AMERICA,

versus

GLEN SUTHERLAND, EDWAD MAYNARD

and GRACE WALKER,

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Texas

ON PETITIONS FOR REHEARING AND SUG-

GESTIONS FOR REHEARING EN BANC

(Opinion September 25, 1981, 5th Cir. 198

— f

B-2

(November 4, 1981)

Before REAVLEY, RANDALL and SAM D.

JOHNSON, Circuit Judges.

PER CURIAM:

(x) The Petitions forRehearing are DENIED and no

member of this panel nor Judge of this Ad-

ministrative Unite in regular active service having re-

quested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Local

Fifth Circuit Rule 16; Fifth Circuit Judicial Council

Resolution of January 14, 1981), the suggestions for

Rehearing En Banc are DENIED.

( ) The Petitions for Rehearing are DENIED and the

judges in regular active service of this Administrative

Unit having in been polled at the request of one of said

judges and a majority of said judges not having voted

in favorof it (Rule 35, Federal Rules of Appellate Pro-

cedure; Local Fifth Circuit Rule 16; Fifth Circuit

Judicial Council Resolution of January 14, 1981), the

suggestions for Rehearing En Banc are also

DENIED.

( ) A member of this Administrative Unit in active

B-3

service having requested a poll on the reconsideration

in tis cause en banc, and a majority of the judges in ac-

tive service of said unit not having voted in favor of it,

rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/S/ Carolyn Dixion Randall

United States Circuit Judge.

* Former Fifth Circuit case, Section 9(1) of Public Law

96-452-October 14, 1980.