Appendix — James M. Cochran v. United States

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UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Tom WELCH, Charles Cashell,

William L. Satterwhite and

James M. Cochran,

Defendants-Appellants.

No. 80-1044,

United States Court of Appeals,

Fifth Circuit.

Unit A

Sept. 21, 1981.

Defendants were convicted before the

United States District Court for the

Eastern District of Texas at _ Tyler,

William M. Steger, J., on charges of

conspiracy to obstruct enforcement of

Texas criminal laws with intent to facili-

tate illegal gambling business, and of

conducting the affairs of an enterprise

affecting interstate commerce’ through

pattern of racketeering activity, and they

appealed. The Court of Appeals, Sam D.

Johnson, Circuit Judge, held that: (1)

A-1

—

where all offenses were alleged to have

been committed in furtherance of a racket-

eering enterprise, joinder was proper even

in absence of RICO conspiracy charge; (2)

trial court did not abuse its discretion

in denying defendants’ motion to sever;

(3) evidence as to one defendant, a county

commissioner, was insufficient to support

his conviction on racketeering count; but

(4) evidence was sufficient with respect

to all charges involving other’ three

defendants and with respect to county

commissioner's conviction on _ conspiracy

count. :

Affirmed.

Appeals from the United States Dis-

trict Court for the Eastern District of

Texas.

Before WISDOM, POLITZ and _ SAM D.

JOHNSON, Circuit Judges.

A-2

SAM D. JOHNSON, Circuit Judge:

This case involves the conviction of

four defendants on charges of conspiracy

to obstruct the enforcement of the crimi-

nal laws of the State of Texas with intent

to facilitate an illegal gambling business

in violation of 18 U.S.C.A. § 1511, and of

conducting the affairs of an enterprise

affecting interstate commerce through a

pattern of racketeering activitiy in

violation of the Racketeer Influenced and

Corrupt Organizations Act (RICO), 18

U.S.C.A. § 1962(c). On appeal, defendants

raise questions concerning joinder under

Fed.R.Crim.P. 8(b) and 14 and sufficiency

of the evidence to support the convictions

on the conspiracy and the racketeering

charges. In addition, they each raise a

number of issues that involve whether the

indictment was defective and whether the

Government properly charged predicate acts

sufficient to support the convictions on

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- eee ee ~~ owe

the racketeering count. We agree with

defendant Satterwhite that the evidence as

to him was insufficient to support his

conviction on the racketeering count. As

to Satterwhite, therefore, we reverse the

RICO conviction. With respect to all

charges involving the other three defen-

dants, and with respect to Satterwhite's

conviction on the conspiracy count, we

affirm.

I. Facts

[1,2] With respect to sufficiency of

the evidence questions, "[wJe can reverse

only if we conclude that a reasonable jury

could not find the evidence inconsistent

with all reasonable hypotheses of the

defendant's innocence." United States v,.

Molina-Garcia, 634 F.2d 217, 218-19 (5th

Cir. 1981). We must view the evidence in

the light most favorable to the Government

and assume that all relevant credibility

choices were made in favor of the Govern-

A-4

~ —————_——-

ment. Glasser v. United States, 315 U.S.

60, 79, 62 S.Ct. 457, 469, 86 L.Ed. 680

(1942); United States v. Marx, 635 F.2d

436, 438 (Sth Cir. 1981). Although the

trial of this case involved a great deal

of conflicting testimony, the facts viewed

in the light most favorable to the Govern-

ment indicate the following:

A. Cantrell's Game

Tom Welch was elected Sheriff of

Gregg County, Texas in 1972, took office

on January 1, 1973, and served in that

position for eight years. A large illegal

gamb ling spevevion had been conducted at

the Foster farm in Gregg County by Raymond

Cantrell for many years prior to Welch's

election. Though the evidence indicated

that Welch was aware of the gambling that

occurred at the Foster farm while Welch

was sheriff, the Sheriff's Office never

closed down the game. Shortly after Welch

was elected sheriff, he was seen at the

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Foster farm in the company of Cantrell.

County sheriff's cars were seen on the

farm property a number of times during

Welch's term as sheriff and, although at

le.st one disturbance at the game was

quelled by Welch's Chief Deputy James M,

Cochran, Cochran did not interfere with

the game. In fact, one ex-deputy testi-

fied that when Cochran arrived, he "just

stated that he knew there was going to be

a little game that night, and everything

was okay." On one occasion, two men who

had attempted to rob the game were picked

up by two deputies and taken to the sher-

iff's home. The sheriff warned them not

to disturb the game because those were the

sheriff's people down there and he was

running a respectable game. There was

some evidence introduced at trial that the

sheriff received money to protect’ the

gambling game.

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- ee Re ee

In the summer of 1978, the area in

which the Foster farm was located was

annexed inside the City of Longview,

Texas. Cantrell decided to move his game

outside the jurisdiction of the City.

Cantrell eventually moved his game to a

farmhouse known as the Pat Smith place.

Prior to the time that he moved the loca-

tion of the game, a deputy sheriff was

sent to the foster farm to deliver a

message to Cantrell stating that Pat Smith

(who ran a farm located outside the city

limits) had been admitted to the Good

Shepherd Hospital. Cantrell received the

message and told the deputy to "advise

Sheriff Welch that he did appreciate it."

When the deputy relayed this information

to the sheriff, the sheriff simply thanked

him. After Cantrell moved his game to the

Pat Smith place, the sheriff placed a

special "vacation" patrol on the new

gambling site while it was being renovated

A-7

- ——_—- -——-—

and, on occasion, the sheriff watched the

progress being made on the _ renovation,

County Commissioner Bill Satter-

white’s workmen serviced the private road

leading up te the Foster farm on occasion,

After Cantrell decided to change _ the

location of the game, Satterwhite in-

structed his men to build a parking lot at

the new casino site. The parking lot was

constructed using county workmen, materi-

als, and equipment. A few months later,

the FBI raided the casino and closed it

down. Satterwhite and Cantrell met with

one county employee who had worked on the

parking lot, Garland Grimes, and arranged

for Grimes to tell the FBI that without

Satterwhite's knowledge, Grimes had worked

out a deal with Cantrell to build the

parking lot. At trial, however, Grimes

testified that he was paid by Satterwhite

to work on the parking lot.

A-8

B. The Fairgr«und Games

Once a year the Longview Jaycees

Gregg County Fair and Livestock Show,

sponsored by the Jaycees, comes to Gregg

County. During 1977 and 1978, the conces-

sion manager was Seymour Berger Schlar.

During those years, the Sheriff's Office

handled the security for the midway area

of the fair.! Illegal gambling openly and

obviously occurred on the midway at the

fair. In both 1977 and 1978, Schlar paid

$1,000 to Welch for protection and freedom

from harassment on the midway.” Several

deputies fron the Sheriff's Office pa-

trolled the midway, guarded the illegal

gambling activities, and received money

from Schlar during the 1977 fair and after

the 1978 fair. Justice of the Peace

Charles Cashell was present on the midway

at the 1978 fair on all nights, and he

also receivd money from Schlar after the

fair. All those who patrolled the midway

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one ewe 2 e - — eee ta nee

were directed to handle any complaints

with respect to gambling there at the

fair, and they were apparently quite

successful at discouraging people from

filing formal complaints. On one occa-

sion, for instance, when undercover FBI

Agent Tom Kilmer complained to one of the

deputies patrolling the midway that he had

lost more than $120.00 at a booth that was

allowing gambling, the deputy stated that

if he were to arrest the people at the

booth, he would also have to arrest Kilmer

for gambling.» None of the gambling games

at the fair were ever shut down,

C. Attempted Murder -- The Barn

Stakeout

In early 1974, Captain Don Hale

discussed with Welch the use of an infor-

mant to apprehend two suspected crimi-

nals--James Edward Makarski and "Danny

Boy" Aldridge. Welch agreed to the use of

the informant, and it was arranged that

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V————— a

ee ee ~-ene -

Hale would be the informant's contact and

that Cochran- would be the go-between for

Hale's contact with Welch. The informant,

former Sheriff*s Office employee Larry

Burke, relayed information to Hale about

the activities of Makarski and Aldridge.

To help him gain the confidence of

Makarski and Aldridge, Burke wanted a

radio that would pick up the police fre-

quency. He requested that Hale alter a

radio for him to serve that _ purpose,

Although Welch and Cochran approved the

plan, the alteration of the radio was

unsuccessful. According to Burke, he was

then given several assignments by Makarski

as a test of his reliability and trust-

worthiness, One assignment was the com-

mission of a robbery at the Pines Motel,

While there, accompanied by a girlfriend

of Aldridge and Makarski, Burke killed one

prostitute and severely wounded another.

A-11

Hale testified that a plan to kill

Burke was subsequently devised to avoid

the embarrassment that would result if it

became known that the man who committed

the "heinous" crime at the Pines Motel had

been working for the Sheriff's Office,

Hale was to give information to Burke to

induce Burke, Makarski, and Aldridge to

attempt to rob the safe at the County

| Barn,” The plan was that while the three

men attempted to rob the safe, they would

be killed. It would then appear that

Burke was a “hero" who died accidentally

while helping the Sheriff's Office appre-

hend two well-known criminals, and the

Sheriff*s Office would be saved from any

embarrassment that might arise as a result

of having to arrest its own informant for

murder.

Welch, Hale, and Satterwhite met at

the County Barn to set up the stakeout,

Satterwhite arranged to bring to the Barn

A-12

ee eee

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——-

a safe as well as some hay to be used for

cover and for the protection of the depu-

ties, Later, on the night of the opera-

tion, Satterwhite drove three deputies to

the Barn in a county dump truck. At the

Barn Satterwhite showed the deputies the

office where their weapons had previously

been placed, and unlocked the office so

the deputies would have access to the

weapons. He drove away before the would-

be robbers arrived. When the robbers did

arrive, they discovered the deputies and

escaped.

D. The Indictment

On August 3, 1979, a federal grand

jury sitting in Tyler, Texas returned a

six-count indictment against twelve indi-

vidual defendants. Count I of the indict-

ment alleged that six defendants (none of

whom are involved in this appeal) conduct-

ed, financed, managed, supervised, direct-

ed, or owned an illegal gambling business

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ieieiineesnemtee ee a

in violation of 18 U.S.C.A. § 1955. Count

II charged the same defendants with a

conspiracy to violate section 1955 in

violation of 18 U.S.C.A. § 371. Prior to

trial, Counts I and II were severed from

the remaining counts and certain parties

were severed from Counts I and II, These

counts are not before this Court on

appeal.

In Count III of the indictment,

defendants Tom Welch, Raymond L. Can-

6 William L. Satterwhite, and James

trell,

M. Cochran were charged with a conspiracy

to obstruct the enforcement of the crimi-

ral laws of the State of Texas with the

intent to facilitate an illegal gambling

business in violation of 18 U.S.C.A. §

4 This conspiracy, which involved

1511.

the facilitation of Cantrell's game, was

alleged to have existed from January l,

1973, to January 17, 1979. Count IV of

the indictment charged Tom Welch, Billy

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enn) Oe. oeeD

Eugene Bryan,° Billy Ray Roach, and

Charles Cashell (along with several unin-

dicted co-conspirators) with a _ second

conspiracy to obstruct the enforcement of

the criminal laws of the State of Texas

with the intent to facilitate an illegal

gambling business in violation of 18

U.S.C.A. § 1511. The indictment charged

that this conspiracy, involving the gam-

bling at the fairgrounds, took place in

September 1978. Count V alleged that from

January 1, 1973 to January 17, 1979,

Sheriff Tom Welch, Deputy Sheriff's James

M. Cochran and Billy Ray Roach, County

Commissioner William L. Satterwhite, and

Justice of the Peace Charles Cashell

conducted and participated in the conduct

of the affairs of an enterprise--the

Sheriff's Office of Gregg County, Texas--

through a pattern of racketeering activity

in violation of 18 U.S.C.A. § 1962(c)./9

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| eee = es

— 3

With respect to Count V, Cochran was

charged with three specific acts of racke-

teering: Conspiracy to obstruct’ the

enforcement of the criminal laws of the

State of Texas with intent to facilitate

an illegal gambling business (act ay, 2}

conspiracy to murder (act G), and accept-

ing a pecuniary benefit ($300) to exercise

discretion as ‘a public servant to allow

the club at the Patriot Motel to operate

in an unlawful manner (act R).

Satterwhite was charged with two

specific acts of racketeering under Count

V: Acts A (the Count III conspiracy

involving Cantrell's game) and G (the

conspiracy to murder charge).

Welch was charged with fourteen

specific acts of racketeering under Count

Vv: Act A (the Count III conspiracy in-

volving Cantrell's game), conspiracy to

obstruct the enforcement of the laws of

the State of Texas with intent to facili-

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— ee ee

tate an illegal gambling business (act

py, }2

benefit from Seymour Schlar to allow

two counts of accepting a pecuniary

illegal gambling in the midway at the

Cointy Fair (acts C and D), solicitation

of and conspiracy to murder (act G), seven

counts of accepting pecuniary benefits

(labor) from prisoners in return for

exercising discretion as a public official

(acts H through nN), 2 accepting a pecuni-

ary benefit in return for not arresting or

apprehending a person pursuant to a lawful

order (act 0), and accepting a pecuniary

benefit ($100) to allow the club at the

Patriot Motel to operate in an unlawful

manner (act Q).

Finally, under Count V, Cashell was

charged with three specific acts of racke-

teering: Act B (the conspiracy count

involving the fairgrounds gambling),

accepting a pecuniary benefit ($350) from

Seymour Schlar to allow illegal gambling

A-17

on the midway at the County Fair (act E),

and obtaining driver's license information

through the Sheriff's Office in return for

a pecuniary benefit (act P).

The last count in the indictment,

Count VI, charged Welch with a violation

of the civil rights of a prisoner while

incarcerated in violation of 18 U.S.C.A. §

242. The charge was based upon an alleged

incident when Sheriff Welch beat an unre-

sisting prisoner with the barrel of his

pistol. This count was severed from the

indictment on the second day of trial on

the basis of misjoinder. The count was

later dismissed in its entirety.

After a thirteen day trial, the jury

returned a general verdict of guilty on

Counts III, IV, and V against all defen-

dants. Welch was sentenced to serve two

consecutive five-year terms on Counts III

and IV. With respect to his conviction on

Count V, Welch was sentenced to serve ten

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on apn eae epee

years, the sentence to run concurrently

with the sentences imposed for Counts III

and IV. For their convictions on Counts

III and V, Satterwhite and Cochran were

sentenced to two concurrent five-year

terms. Cashell was sentenced to two

concurrent three-year terms for his Count

IV and V convictions.

II. Misjoinder

On appeal, the defendants raise three

contentions involving the issue of mis-

joinder: (1) Under Fed.R.Crim. P. 8(b),

those defendants charged under Counts III

were itsteteed with those defendants

charged under Count IV; (2) under Fed.R,

Crim. P. 14, those defendants’ charged

under Count III were prejudically joined

with those defendants charged under Count

IV, and (3) the original inclusion of

Count VI violated Fed.R.Crim. P. 14. None

of these contentions require that the

defendants’ convictions be reversed.

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A. Joinder of Defendants Under Rule

8(b) :

{3] All defendants claim misjoinder

under Fed.R.Crim. P. 8(b). Rule 8(b),

which governs the joinder of multiple

defendants, provides:

Two or more defendants may be

charged in the same indictment or

information if they are alleged to

have participated in the same act or

transaction or in the same series of

acts or transactions constituting an

offense or offenses. Such defendants

may be charged in one or more counts

together or separately and all of the

defendants need not be charged in

each count.

The issue of misjoinder under Rule 8 is a

matter of law and, as such, is completely

reviewable on appeal. United States v.

Marionneaux, 514 F.2d 1244, 1248 (5th Cir,

1975), cert. denied, 434 U.S. 903, 98

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S.Ct. 298, 54 L.Ed.2d 189 (1977).

[4] The Count III conspiracy in-

volved Cantrell's game, whereas the Count

IV conspiracy involved the gambling at the

fairgrounds. These conspiracies occurred

at different times, involved different

people (with the exception of Welch), and

involved completely separate acts of

gambling. The conspiracies charged in the

two counts are not part of the same act or

transaction, Hence, in order for _ the

defendants in each of these counts to have

been properly joined, it must be alleged

that they participated in the same series

of acts or transactions constituting an

offense or offenses. “Separate conspira-

cies with different memberships may still

be joined if they are part of the same

series of acts or transactions." United

States v. Grassi, 616 F.2d 1295, 1303 (Sth

Cir.), cert. denied, --U.S.--, 101 S.Ct.

363, 66 L.Ed.2d 220 (1980). Thus, the

A-21

6 eee

ere ee oe ee = oe oe

Les

inquiry of this Court must focus on wheth-

er the two separate conspiracies alleged

by Counts III and IV are part of the same

series of acts or transactions.

{5} The question of what constitutes

a series of acts or transactions has been

before this Court a number of times.

“Whether or not separate offenses are part

of a ‘series of acts or transactions’

under 8(b) depends ... on the relatedness

of the facts underlying each offense....

[W]hen the facts underlying each offense

are so closely -connected that proof of

such facts is necessary to establish each

offense, joinder of defendants and of-

fenses is proper." United States v.

Gentile, 495 F.2d 626, 630 (5th Cir.

1974). When there is no "substantial

identity of facts or participants between

the two offenses, there is no ‘'series' of

acts under Rule 8(b)." Marionneaux, 514

F.2d at 1249. It is clear that defendants

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Oe 0 eee geen

charged with two separate--albeit similar

--conspiracies having one common partici-

pant are not, without more, properly

joined. See United States v. Nettles, 570

F.2d 547, 551 (5th Cir. 1978) ("When, as

here, the connection between different

groups is limited to a few individuals

common to each but those individuals

commit separate acts which involve them in

separate offense with no common aim, then

the requisite substantial identity of

facts or participants is not present.")

(emphasis added); Marionneaux, 514 F.2d at

1248-49. Clearly, similarity of acts

alone is insufficient to indicate that a

series of acts exists. The Government

concedes as much, and does not purport to

argue that Counts III and IV would be

properly joinded in the absence of Count

In the instant case, however, we are

not faced with the joinder of two separate

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and distinct conspiracies and nothing

more. Rather, the indictment also in-

cluded Count V--the substantive RICO count

under which both Counts III and IV were

15 To properly

alleged as predicate acts,

discuss the application of Rule 8(b) to

this case, therefore, a brief examination

of the RICO statute is necessary.

{6}] The RICO count charged that the

four defendants violated 18 U.S.C.A. §

1962(c)!® by conducting the affairs of the

Sheriff's Office through a pattern of

racketeering activity. Engaging in a

“pattern of racketeering activity” re-

quires at least two acts of racketeering

within a _ ten-year period, !? Finally,

racketeering activity is expressly defined

to include only certain types of con-

duct, 18 including acts indictable under 18

U.S.C.A. § 1511. Here, the Cantrell's

game conspiracy (Count III) and the fair-

grounds conspiracy (Count IV) were each

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° +-aeereee

alleged to constitute one of the required

two acts of racketeering activity neces-

sary for the substantive RICO violation.!? °

Including both conspiracies as predicate

acts under the substantive RICO count

served as an allegation that the purpose

of both conspiracies was to conduct the

affairs of the Sheriff's Office through a

pattern of racketeering activity.

[7] It is well settled that the

joinder of otherwise separate acts may be

allowed when the acts are properly linked

by means of a ‘conspiracy charge. The

conspiracy charge can serve to provide the

common nexus between the acts that is

necessary in order to find that those acts

are part of a series of acts or transac-

tions. Indeed, the defendants here admit

that had a RICO conspiracy count’ been

charged, the joinder of Counts III and IV

would have been proper .-° They contend,

however, that since only a RICO substan-

A-25

tive count was charged in addition to the

two allegedly unrelated conspiracies,

joinder was improper. We must reject the

reasoning of this argument. It is true

that a RICO conspiracy count can provide

the connexity between two otherwise unre-

lated conspiracies necessary to satisfy

the requirements of Rule 8(b). A conspir-

acy charge, however, is not the only way

to establish that acts which appear to he

separate are actually part of a series of

acts or _ transactions. When otherwise

separate offenses are charged as predicate

acts of a substantive RICO count, they may

be related to each other in such a way as

to satisfy Rule 8(b). Just as a RICO

conspiracy charge can provide an overall

connection allowing the joinder of other-

wise unrelated acts, a RICO substantive

count can provide an overall connection

that will allow the joinder of seemingly

unrelated acts.

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In reaching the conclusion that a

RICO substantive count can provide the

connexity necessary to satisfy Rule 8(b)

with respect to two facially unrelated

conspiracies, we find this Court's rea-

soning in United States v. Elliott, 571

F.2d 880 (Sth Cir:), cert. denied, 439

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

(1978), instructive. The Court in Elliott

addressed the question whether diverse

criminal activities that could not have

been joined as a single conspiracy under

the law as it existed prior to the enact-

ment of the RICO stetute could be joined

as a conspiracy to violate a substantive

RICO provision. In Elliott, this Court

stated, "[WJe are convinced that, through

RICO, Congress intended to authorize the

single prosecution of a multi-faceted,

diversified conspiracy by replacing the

inadequate ‘wheel’ and ‘chain" rationales

with a new statutory concept: the enter-

A-27

prise.” Id. at 902. The Elliott Court

concluded that under pre-RICO conspiracy

concepts, the diverse criminal activities

that had taken place in that case could

not have been joined in a single con-

spiracy charge:

The activities allegedly embraced by

the illegal agreement in this case

are simply too diverse to be tied

together on the theory that partici-

pation in one activity necessarily

implied awareness of others. Even

viewing the "common objective" of the

conspiracy as the raising of revenue

through criminal activity, we could

not say, for example, that Foster,

when he helped to conceal. stolen

meat, had to know that J. C. was

selling drugs to persons unknown to

Foster, or that Delph and Taylor,

when they furnished counterfeit

titles to a car theft ring, had to

A-28

know that the man_ supplying the

titles was also stealing goods out of

interstate commerce, The enterprise

involved in this case probably could

not have been successfully prosecuted

as a single conspiracy under the

general federal conspiracy statute,

18 U.S.C. § 371.

Id. (footnote omitted). The Court con-

cluded that, although the activities could

not have been joined as a single conspir-

acy charge prior to RICO, they could be

joined as a RICO conspiracy. According to

the Elliott Court, RICO permits the infer-

ence of a common objective from the com-

mission of diverse crimes by apparently

unrelated individuals by "creating a

substantive offense which ties together

these diverse parties and crimes." Id.

Thus, in Elliott, all the highly diversi-

fied activities were connected by their

common aim--to violate the substantive

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§&,

—_—_—

RICO provision. In that case there was a

single conspiracy characterized by an

agreement to; participate directly and

indirectly in the affairs of the enter-

prise by committing two or more predicate

crimes,

{8} In the case before this Court,

we are not concerned with whether multiple

activities that could not have been joined

as a single conspiracy prior to RICO can

now be joined as a RICO conspiracy.

Rather, we are faced with the question

whether two separate conspiracies’ that

would not have lent themselves to joinder

in a single indictment prior to RICO can

be included in one indictment and tried

together when a substantive RICO offense

citing both conspiracies as predicate acts

is also charged. As the Elliott Court

concluded, the enterprise supplies a

unifying link between all the predicate

acts charged, since all the predicate acts

A-30

must be committed in the conduct of the

affairs of an enterprise. Here, Count V

(the substantive RICO offense) charged

that all defendants did conduct and parti-

cipate in the conduct of the affairs of an

enterprise (the Sheriff's Office) by

committing two or more predicate crimes.

Each conspiracy charged by Counts III and

IV constituted one of the predicate crimes.

Thus, each conspiracy was aimed at parti-

cipating in the affairs of the enterprise.

The acts directed at conducting the af-

fairs of the Sheriff's Office through a

pattern of sedincsecton activity were

related to each other and were part of a

series of acts or _ transactions. The

common goal--conducting the affairs of the

Sheriff's Office by means of a pattern of

racketeering--provides a sufficient iden-

tity of facts to satisfy Rule 8(b). In

this case, therefore, when Counts III and

IV were charged separately and as predi-

A-31

eee

cate acts of a substantive RICO offense,

there exists a sufficient interrelation-

ship between the offenses charged to

satisfy the requirements of Rule 8(b).

To reach a different conclusion would

not serve the purposes of Rule 8(b). "The

purpose of the rule is, in the interest of

convenience and expediency, to encourage

joint trials while at the same time limit-

ing as much as possible the admission at

trial of prejudicial evidence against a

defendant." Gentile, 495 F.2d at 630,

Count III simply realleges in a substan-

tive count the allegations of predicate

act A, while Count IV realleges in a

substantive count the allegations of

predicate act B. The same evidence used

to prove predicate acts A and B are used

to prove Counts III and IV. Had Counts

III and IV not been alleged in the indict-

ment, there would have been no change in

the evidence offered at trial. The addi-

A-32

; | /

= oe

ty.

tion of Counts III and IV did not enable

the Government to intr .duce any evidence

that would not have been admissible under

Count V. Had separate trials been re-

quired on Counts III and V on the one

hand, and Counts IV and V on the other

hand, two trials with substantially iden-

tical evidence would have been necessi-

tated.

In ruling that there was no misjoin-

der under Rule 8(b) in this case, we

follow the lead of the Second Circuit. In

United States v. Weisman, 624 F.2d 1118

(2d Cir.), cert. denied, -- U.S. --, 101

S.Ct. 209, 66 L.Ed.2d 91 (1980), defendant

Weisman was convicted of (1) operating the

Westchester Premier Theatre through a

pattern of racketeering activity in

violation of 18 U.S.C.A. § 1962(c); (2)

nine counts of fraud in the sale of secur-

ities; (3) nine counts of bankruptcy

fraud; (4) one count each of conspiracy to

A-33

ee ere ne a

ee eee

commit securities fraud and _ bankruptcy

fraud; and (5) one count of endeavoring to

obstruct a grand jury’ investigation,

Defendant Cannatella was convicted of (1)

bankruptcy fraud and (2) conspiracy to

commit bankruptcy fraud. Cannatella

argued that he was improperly joined under

Rule 8(b) with the other defendants. The

Second Circuit held that the RICO count

provided "a sufficient nexus between the

counts of securities fraud and bankruptcy

fraud to establish that they were part of

the ‘same series of acts or transactions’

oc ow Bd. at 1129. The court reasoned

as follows:

Rule 8(b) permits the joint

trial of defendants who are “alleged

to have participated in the same act

or transaction or in the same series

of acts or transactions constituting

an offense or offenses." This re-

quirement is met by the RICO count of

A-34

ale ee le

the indictment. As previously noted,

the jury could properly find that

Weisman engaged in a “pattern of

racketeering activity" that included,

but was not limited to, the predicate

acts of bankruptcy fraud with which

Cannatella was charged. If, as we

have already concluded, the acts of

bankruptcy fraud could properly be

considered part of a "pattern of

racketeering activity," we see no

reason why they could not similarly

constitute part of a "series of acts

or transactions constituting an

offense" within the meaning of Rule

8(b). Indeed, a construction of Rule’

8(b) that required a closer relation-

ship between transactions than that

necessary to establish a "pattern of

racketeering activity" under’ RICO

might possibly prohibit joinder in

A-35

a ee et Oe ee :

circumstances where Congress clearly

envisioned a single trial.

Id. Thus, the Weisman court held that the

joinder of Cannatella with the other

defendants did not violate Rule 8(b), even

though Cannatella was indicted only on the

bankruptcy fraud charges and not on the

unifying RICO count.

We are also supported in our decision

by United States v. Bright, 630 F.2d 804

(5th Cir. 1980). In that case, the eight-

count indictment charged a number of

defendants with both conspiracy and sub-

stantive racketeering offenses, interstate

travel in aid of racketeering, extortion

and receiving payoffs under color of law,

and obstruction of justice. In response

to the defendants’ contention that the

trial court improperly denied defendants’

motion to sever, the Bright Court stated:,

It is true that the defendants

in this case were alleged to have

A-36

———-

committed different predicate crimes.

Indeed, if this was not a RICO case,

the defendants would have a valid

argument of mis joinder--those defen-

dants alleged to have extorted money

from tonk operators hardly engaged in

the same "series of acts or transac-

tions" as the defendants who alleged-

ly paid bribes to the sheriff to

operate as a monopoly. The gist of

the RICO offense, however, is that

the defendant, through a pattern of

predicate crimes, furthered a racke-

teering enterprise. The offense

charged here is not the commission of

the predicate crimes, but the fur-

thering of the enterprise. United

States v. Elliott, 571 F.2d 880 (Sth

Cir.), cert. denied, 439 U.S. 953, 99

S.Ct. 349, 58 L.Ed.2d 344 (1978),

Thus viewed, it is clear the defer-

dants were alleged to have partici-

A-37

en - -

— -

iL.

————

c-——

1 cetntinend

pated in the same offense and joinder

was not improper under Rule 8.

Id. at 812-13. Similarly, in the instant

case, when all the offenses were alleged

to have been committed in furtherance of a

racketeering enterprise, joinder was

proper under Rule 8(b) even in the absence

of a RICO conspiracy charge.

B. Joinder of Defendants Under Rule

Defendants argue that, in the event

this Court finds that there was no mis-

joinder of defendants under Rule 8(b),

then joinder was prejudicial under Fed.R.

Crim.P. 14. Rule 14 provides in perti-

nent part:

If it appears that a defendant

or the government is prejudiced by a

joinder of offenses or of defendants

in an indictment or information or by

such joinder for trial together, the

court may order an election or sepa-

A-38

rate trials of counts, grant a seve-

rance of defendants or provide what-

ever other relief justice requires,

{9,10} Unlike Rule 8(b), severance

under Rule 14 is a matter within the

discretion of the trial court and denial

of a motion to sever is reversible only

for abuse of discretion. United States v.

Park, 531 F.2d 754, 761 (Sth Cir. 1976).

To warrant severance under Rule 14, the

burden is upon the defendant to show clear

prejudice. The general test is:

[W}hether under all the circumstances

of the particular case, as a practi-

cal matter, it is within the capacity

of the jurors to follow the court's

admonitory instructions and accord-

ingly to collate and appraise the

independent evidence against’ each

defendant solely upon that defen-

dant's own acts, statements’ and

conduct. In sum, can the jury keep

A-39

‘‘.

LL Le. tr a., ealy lay

separate the evidence that is rele-

vant to each defendant and render a

fair and impartial verdict as to him?

If so, though the task be difficult,

severance should not be granted.

Peterson v. United States, 344 F.2d 419,

422 (5th Cir. 1965) (footnotes omitted),

quoted in United States v. Martino, 648

F.2d 367, 385 (5th Cir. 1981). The defen-

dants have a “heavy burden in demonstrat-

ing prejudice when a severance is not

granted." United States v. Crockett, 514

F.2d 64, 70 (Sth Cir. 1975).

[11,12] After a careful and thorough

review of the record, we cannot say that

the trial court abused its discretion in

denying defendants" motions to sever. The

evidence was neither so complex nor so

confusing that the jury could not separate

the evidence and properly apply it only to

those against whom it was offered .7}

. A-40

ee ae |e ee ee + oe -

C. Joinder of Count VI

{13] Count VI, charging a civil

rights violation by Sheriff Welch, was

severed on the second day of trial. The

only reference made to this count in the

presence of the jury was the following

remark made by the prosecutor in his

opening statement:

Count VI is a civil rights

violation against Sheriff Welch only.

We will show you, and prove to you,

the events that happened at that

particular time was that Sheriff

Welch came in drunk to his office

late one night and in the presence of

two or more Deputies took his pistol

to an unresisting prisoner, and

slashed him about the face with the

barrel, causing a vast amount of

blood to be lost by the prisoner, in

violation of the Civil Rights laws of

: the United States.

A-41

No evidence was received on this count

prior to its severance. At the close of

all the evidence, the trial court judge

gave the jury the following cautionary

instruction:

You are instructed that _ for

legal reasons, about which you are

not to speculate, the Court has

determined that Counts I, II, and VI,

and Paragraph "O" of Count V, should

not be tried in this trial. You are

not to consider these Counts when

deliberating on Counts III and IV,

and the remainder of Count V, and you

are to consider only Counts III and

IV and the remainder of Count V, and

the evidence which is related to

those Counts, in arriving at your

verdict.

Defendants argue that they’ were

prejudiced by the late severance of Count

VI and that they are, therefore, entitled

A-42

to a reversal of their convictions.

Defendants’ conclusory contention’ that

"the belated severance of this count only

enhanced the prejudicial effect of an

indictment that was already infested with

misjoinder™ will not satisfy their burden

of showing clear prejudice. In the con-

text of the entire record, the timing of

the severance of Count VI did not consti-

tute prejudicial error requiring a new

trial.

III. Sufficiency of the Evidence and of

the Indictment

A. Welch

[14] Welch contends that the evi-

dence was insufficient to sustain his

conviction on the two conspiracies charged

by Counts III and Iv. These counts

charged Welch with two separate conspira-

cies to obstruct the enforcement of the

criminal laws of the State of Texas with

the intent to facilitate an illegal gamb-

A-43

_—-——— ese

ling business pursuant to 18 U.S.C.A. §

1511. Under this statute, it is part of

the Government's burden to prove, inter

alia, that there was a conspiracy, the

object of which was to obstruct’ the

enforcement of the criminal! laws of Texas

with the intent to facilitate an illegal

gamb ling business, 2“ and that Welch was a

member of that conspiracy. See United

States v. Cylkouski, 556 F.2d 799, 803

(6th Cir. 1977). "The essense of con-

spiracy is the agreement to engage in

concerted unlawful activity." Grassi, 616

F.2d at 1301; United States v. Suarez, 608

F.2d 584, 586 (Sth Cir. 1979).73 “There

must be proof beyond reasonable doubt that

a conspiracy existed, that the accused

knew about it, and that the accused, with

that knowledge, voluntarily became a part

of it." United States v. Gutierrez, 559

F.2d 1278, 1280 (5th Cir. 1977). See

United States v. Malatesta, 590 F.2d 1379,

A-44

mah }

—<S <eee ee oeeme «. No

1381 (5th Cir.) (en banc), cert. denied,

440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d

777 (1979) & 444 U.S. 846, 100 S.Ct. 91,

62 L.Ed.2d 59 (1979). “[{PJarticipation in

a criminal conspiracy need not be proved

by direct evidence; a common purpose and

plan may be inferred from a ‘development

and a collocation of circumstances.'" Id,

(quoting Glasser v. United States, 315

U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680

(1942)). The standard for review on

appeal is whether there is substantial

evidence to support the conspiracy convic-

tion when the evidence is viewed in the

light most favorable to the Government.

Maiatesta, 590 F.2d at 1382.

[15-19] With respect to Count III,

Welch argues that, although the Government

might have shown that Welch knew of the

existence of Cantrell's game, there was no

evidence that Welch agreed to facilitate

the game. It is clear that mere associa-

A-45

tion with conspirators or knowledge of. a

conspiracy is insufficient to convict a

defendant of conspiracy; rather, the

Government must demonstrate that the

defendant agreed with others that together

they would accomplish the unlawful object

of the conspiracy. Grassi, 616 F.2d at

1301. Neither direct evidence nor a

formal agreement is necessary, however, to

establish a conspiracy. United States v.

Barrera, 547 F.2d 1250, 1256 (Sth Cir.

1977). Evidence of knowledge and associa-

tion, in conjunction with other circum-

stantial evidence, can prove an agreement

to join a conspiracy. Grassi, 616 F.2d at

1301-02. Where knowledge of a conspiracy

and an intentional act in furtherance

thereof can be proved, the jury may rea-

sonably infer the existence of an agree-

ment. A person's acts can create an

inference concerning what he has agreed to

do and, therefore, an agreement to join a

A-46

- “7 nee eee

criminal conspiracy may be inferred from

the performance of acts that further its

purpose.-4 Marx, 635 F.2d at 439 ("The

defendant's assent to a conspiracy may be

inferred from acts which furthered the

purpose of the conspiracy."); United

States v. Morado, 454 F.2d 167, 174 (5th

Cir.) ("{P]Jroof of such an agreement may

rest upon inferences drawn from relevant

and competent circumstantial evidence--

ordinarily the acts and conduct of the

alleged conspirators themselves."), cert,

denied, 406 U.S. 917, 92 S.Ct. 1767, 32

L.Ed.2d 116 (1972). Here, Welch knew

about Cantrell's game and was present at

the location of the game a number of

times. He ordered his men to patrol the

Pat Smith place while construction was

under way there to make the place a more

suitable location for Cantrell's game,

The evidence indicates that Welch warned

two would-be robbers to stay away from his

A-47

SO ee

game and to leave his people alone.

Although the sheriff's men quelled distur-

bances at Cantrell's game at least twice,

they never interfered with the game or

closed it down. There was evidence that

the sheriff received "insurance" money to

protect the illegal gambling. The jury

could reasonably infer--in light’ of

Welch's knowledge and his intentional acts

in furtherance of the conspiracy--that

Welch agreed to engage in the obstruction

of the enforcement of the criminal laws of

Texas with the intent to _ facilitate

Cantrell's game. Viewing the evidence in

the light most favorable to the Government,

and accepting all reasonable inferences

that support the jury verdict, we find

that there is substantial evidence to

support the jury verdict on Count III.

Welch also contends that the evidence

is insufficient to sustain his conviction

on Count IV involving a conspiracy with

A-48

intent to facilitate gambling at’ the

fairgrounds. The same principles noted

above apply to this count. Welch argues

that, while the Government might have

proved the existence of illegal games at

the fairgrounds, it failed tv prove the

existence of a conspiracy or the commis-

sion of any acts that would obstruct the

enforcement of the law. The evidence with

respect to this charge indicated that

through the concession manager Seymour

Schlar, the sheriff received money from

the gambling operators in 1977 and 1978,

Each year the same members of the Sher-

iff's Office--who also received money from

Schlar--regularly patrolled the midway

area of the fair. They protected the open

and obvious gambling that occurred on the

midway. Although they received complaints

from people who had lost money at booths

conducting gambling games, they never

closed down any of those gambling games,

A-49

“<> « <2

Welch himself was informed of a number of

gambling complaints, yet he never took any

action to stop the illegal gambling taking

place on the midway. There is. proof

beyond a reasonable doubt that a conspir-

acy existed, There is, in addition,

substantial evidence that Welch knew of

this conspiracy and voluntarily became

part of it. This Court cannot say that

the jury verdict was improper.

Finally, Welch contends that’ the

evidence presented at trial was insuffi-

cient to sustain a conviction on Count

V--the substantive RICO offense. This

Court has recently stated that five ele-

ments comprise a substantive RICO charge:

The government must prove (1) the

existence of the enterprise; (2) that

the enterprise affected interstate

commerce; (3) that the defendant was

employed by or associated with the

enterprise; (4) that he participated

A-50

in the conduct of the affairs of the

enterprise; and (5) that he partici-

pated through a pattern of racketcer-

“ing activity.

Martino, 648 F.2d at 394. Welch maintains

first that the Government failed to show

that Welch engaged in a pattern of racke-

teering activity; i.e., Welch claims that

there was insufficient evidence to con-

clude that he had committed two predicate

acts, Second, Welch argues that’ the

Government failed to show that he partici-

pated in the conduct of the affairs of the

enterprise through a pattern of racketeer-

ing activity.

1. Commission of Two Predicate Acts

[20] To be convicted on a section

1962(c) RICO charge, the evidence must

show that the defendant participated in

the affairs of the enterprise through a

pattern of racketeering activity. This

requires the commission of at least two

A-51

om ee ee ee +e.

predicate crimes. Welch was charged with

fourteen predicate acts (although one was

later severed), including conspiracy to

obstruct the enforcement of the criminal

laws of Texas with the intent to facili-

tate Cantrell's game and conspiracy to

obstruct the enforcement of the criminal

laws of Texas with the intent to facili-

tate the gambling at the fairgrounds. We

have already held that there was suffi-

cient evidence to support Welch's convic-

tion on these counts; consequently, the

Government sustained its burden of proving

that Welch engaged in a pattern of racke-

teering activity.

In addition to the two acts of racke-

teering discussed above, the indictment

also listed eleven counts of bribery as

predicate acts committed by Welch, 2?

Welch raises two arguments with respect to

these bribery charges. First, he claims

that if the offenses were acts of bribery,

A-52

a ee ee ewe - +

they fell within a different subsection of

the Texas bribery statute than was charged

in the indictment; consequently, the

indictment was defective. Second, Welch

maintains that the offenses were not acts

of bribery at all, but were instead only

misdemeanors that could not properly serve

as predicate acts for a RICO conviction.

Welch's contentions are without merit.

Welch notes that the Government

charged him with violating Tex. Penal Code

Ann. tit. 8, § 36.02(a)(1) (Vernon Supp,

1980), which provides:

§ 36.02. .Bribery

(a) A person commits an offense

if he intentionally or _ knowingly

offers, confers, or agrees to confer

on another, or solicits, accepts, or

agrees to accept from another:

(1) any pecuniary benefit as

consideration for the recip-

A-53

ient's ... exercise of discre-

tion as a public servant ....

Welch argues that the predicate acts of

bribery charged in Count V were not acts

that were within the sheriff's discretion

to permit. Rather, Welch claims that the

indictment should have charged that these

acts violated section 36.02(a)(3), which

provides:

; (a) A person commits an offense

if he intentionally or knowingly

offers, confers, or agrees to confer

on another, or solicits, accepts, or

agrees to-accept from another: ...

(3) any benefit as considera-

tion for a violation of a duty

imposed by law on a_ public

servant or party official.

Welch concludes that since the indictment

failed to charge the proper offense under

the bribery statute, the indictment was

defective and his conviction must _ be

reversed.

A-54

- — --eeeeeee

{21} Even if the acts of bribery

charged in the indictment did cite the

wrong subpart of the bribery statute, this

would not require reversal of the convic-

tion. Although the RICO statute defines

racketeering activity in part by making

reference to state law violations, the

gravamen of the racketeering charge is a

violation of federal law. "Courts con-

struing the racketeering statutes have

found that the references to state law

serve a definitional purpose, to identify

generally the kind of activity made ille-

gal by the federal statute." United

States v. Salinas, 564 F.2d 688, 690 (Sth

Cir. 1977), cert. denied, 435 U.S. 951, 98

S.Ct. 1577, 55 L.Ed.2d 800 (1978). "[T]he

reference to state law in the federal

statute is for the purpose of defining the

conduct prohibited and for the purpose of

supplementing, rather than pre-empting,

state gambling law." Id. at 692 (quoting

A-55

_— °-—-< .. <=

United States v. Revel, 493 F.2d 1, 3 (5th

Cir. 1974), cert. denied, 421 U.S. 909, 95

S.Ct. 1559, 43 L.Ed.2d 774 (1975) (empha-

sis in original). See United States v,

Brown, 555 F.2d 407, 418 n.22 (5th Cir.

1977), cert. denied, 435 U.S. 904, 98

S.Ct. 1448, 55 L.Ed.2d 494 (1978); United

States v. Crockett, 506 F.2d 759 (5th

Cir.) (in context of prosecution pursuant

to 18 U.S.C.A. § 1955, trial court did not

err in failing to give jury the Georgia

statutory language making gambling ille-

gal), cert. denied, 423 U.S. 824, 96 S.Ct.

37, 46 L.Ed.2d 40 (1975).

In Salinas, two defendants had been

charged with collecting unlawful debts for

an enterprise engaged in interstate com-

merce in violation of 18 U.S.C.A. § 1962(c).

Section 1961(6) defines an unlawful debt

as one incurred in violation of state laws

against gambling and the business of

gambling. The pertinent state law--that

A-56

——

hou’

of Texas--proscribed gambling, but did not

address the “business of gambling." The

Salinas Court concluded that:

{I]t was not the intent of Congress

to attack gambling only in states

that classify gambling along the

federal model. The reason for the

Congressional conjunctive requirement

that a debt be incurred in connection

with gambling and with the business

of gambling was that it sought to

punish only large scale gambling

operations involving “organized

crime" as contrasted with small time

gambling.

564 F.2d at 691. Similarly, the Third

Circuit affirmed the conviction of defen-

dants on racketeering charges even though

they had previously been acquitted in

state court of offenses that were charged

as acts of racketeering for purposes of

the RICO violation. The court’ stated

A-57

ERT SS EOE ae eee oe

a | ‘ine Repamend

that, "The state offenses referred to in

the federal act are definitional only;

racketeering, the federal crime, is de-

fined as a matter of legislative drafts-

manship by reference to state law crimes."

United States v. Frumento, 563 F.2d 1083,

1087 (3rd Cir. 1977), cert. denied, 434

U.S. 1072, 98 S.Ct. 1256, 1258, 55 L.Ed.2d

775 (1978), quoted in Salinas, 564 F.2d at

692. The Frumento court went on to say:

In arguing that the acts of

these defendants were not “chargeable

under State law and punishable by

imprisonment for more than one year"

since both defendants had been ac-

quitted in state court, the dissent

misconstrues this definitional pur-

pose. Section 1961 requires, in our

view, only that the conduct on which

the federal charge is based be typi-

cal of the serious crime dealt with

by the state statute, not that the

A-58

1 ree

particular defendant be "chargeable

under State law"' at the time of the

federal indictment.

563 F.2d at 1087 n.8A (emphasis in origi-

nal). See United States v. Malatesta, 583

F.2d 748, 757-58 (5th Cir. 1978), vacated

on other grounds, 590 F.2d 1379 (5th Cir.)

(en banc), cert. denied, 440 U.S. 962, 99

S.Ct. 1508, 59 L.Ed.2d 777 (1979) 444 U.S.

846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979),

[22] It follows from the _ above-

stated principles that whether Welch's

conduct violated Tex. Penal Code Ann, tit.

8, § 36.02(a)(1) (Vernon Supp. 1980) or

id. § 36.02(a)(3), it is precisely the

type of serious conduct contemplated by

the RICO statute as actionable as an act

of racketeering. Any possible miscitation

of the pertinent subsection of the Texas

bribery statute did not constitute rever-

sible error.**

A-59

[23] Welch's second argument is that

the acts of bribery charged in the indict-

ment were not actually acts of bribery at

all; rather, they were acts of official

misconduct under Tex. Penal Code Ann, tit.

8, § 39.01(a)(1)-(4) (Vernon 1974). This

argument, if true, could potentially have

more serious ramifications than a mere

possible miscitation of the proper subsec-

tion of the Texas bribery statute, since

offenses under this section are misdemean-

ors and, as such, cannot serve as predi-

cate crimes for purposes of a RICO convic-

tion. Section 39.01 provides in part:

(a) A public servant commits an

offense if, with intent to obtain a

benefit for himself or to harm anoth-

er, he intentionally or knowingly:

(1) commits an act relating

to his office or employment that

constitutes an unauthorized

exercise of his official power;

A-60

‘ae

(2) commits an act’ under

color of his office or employ-

ment that exceeds his official

power;

(3) refrains from performing

a duty that is imposed on him by

law or that is clearly inherent

in the nature of his office or

employment;

(4) violates a law relating

to his office or employment ....

Since we have already decided, how-

ever, that the Government sustained its

burden of proving Welch's involvement in

the two predicate acts necessary to sup-

port his RICO conviction--the Count III

conspiracy (alleged as predicate act A)

and the Count IV cons: acy (alleged as

predicate act 8)--proof of Welch's in-

volvement in the alleged acts of bribery

is not necessary in order to affirm

Welch's conviction on the RICO charge,

A-61

However, Welch maintains that the improper

inclusion of the bribery charges in the

indictment, and the evidence offered at

trial to substantiate these acts, was

prejudicial to Welch inasmuch as the sole

effect and purpose of the so-called brib-

ery charges and the corresponding evidence

as to present Welch as a _ bad person

generally.

Welch's argument does not necessitate

a reversal of his conviction. First, it

appears that the acts charged in the

indictment against Welch do fall within

the provisions of section 36.02(a)--the

' Texas bribery statute. Second, even if

the offenses were acts of official miscon-

duct, we cannot say that the inclusion of

these charges in the indictment and the

evidence produced at trial to support

these charges was so prejudicial as to

require reversal.

A-62

—— 2a

CE I te

2. Participation in the Conduct of

the Affairs of the Enterprise

Through a Pattern of Racketeer-

ing Activity

[24] Welch maintains that the Gov-

ernment made no showing that the activi-

ties of the Sheriff's Office were con-

ducted through the acts of racketeering

alleged as predicate offenses. To support

this contention, Welch argues that no

proof was offered that the alleged predi-

cate offenses “promoted or advanced" the

affairs of the named enterprise and that

the trial court declined to instruct the

jury that such promotion or advancement

was necessary to a RICO conviction. In

addition, Welch notes that the Govern-

ment’s proof sought to show that’ the

proceeds or benefits derived from the

racketeering activities- went to the indi-

vidual defendants in this case and not to

the Sheriff's Office.

A-63

ee ee nee eo

Welch cites a recent Fourth Circuit

case, United States v. Webster, 639 F.2d

174 (4th Cir. 1981), to support his con-

tention that the statutory language re-

quiring "the conduct of such enterprise's

affairs through a pattern of racketeering"

must be interpreted to require that the

affairs of the enterprise be advanced by

the racketeering. In Webster, the enter-

prise was alleged to be the 1508 Club

Tavern and Liquor Store, which was owned

and operated by one of the defendants

involved in a drug distribution network.

The club was ‘used to facilitate the drug

distribution operation out of which the

racketeering activity arose. The Fourth

Circuit held that “the prosecution was

required to prove that the ‘enterprise’

.-- had its affairs advanced or benefitted

in some fashion, direct or indirect, by

the pattern of racketeering activity."

Id. at 185-86. The court rejected the

A-64

- ore

o ————— = oer ee

Government's argument that "the statute

requires only a ‘substantial nexus' be-

tween the racketeering and the conduct of

the enterprise's affairs, regardless of

which direction the assistance flows."

Id. at 184. Instead, the court concluded

that:

The meaning of the word "through"

suggests that, at least where the

government elects to cast a § 1962(c)

indictment in a form in which the

"enterprise"

is the legal or ostensi-

bly legal activity, and not the

racketeering activity itself, the

statute should be applied in such a

way as to punish where the racketeer-

ing activity advances the nonracke-

teering business but not where the

only relation between the two con-

sists of benefits which the racke-

teering activity derives from the

nonracketeering enterpise.

A-65

< eee <0 eee. 6 ere eos

Id. at 184-85,27

We find the reasoning of the Fourth

Circuit, and its interpretation of the

word "through," to be unduly restrictive.

The law has not previously been interpre-

ted by this Court to require evidence that

the enterprise received money or_ was

financially advanced by the pattern of

racketeering activites. Rather, all that

has been required--as stated in the sta-

tute itself--is that the Government prove

that the affairs of the enterprise are

conducted through a pattern of racketeer-

ing activity. The Elliott Court has

interpreted this provision to require a

relation between the predicate crime and

the affairs of the enterprise. That Court

stated:

We note also that the Act does not

criminalize either associating with

an enterprise or engaging in a pat-

tern of racketeering activity stand-

A-66

ee ee

te.

ing alone, The gravamen of _ the

offense described in 18 U.S.C. §

1962(c) is the condict of an enter-

prise's affairs through a pattern of

racketeering activity. Thus, the Act

does require a type of relatedness:

the two or more predicate crimes must

be related to the affairs of the

enterprise but need not otherwise be

related to each other.

571 F.2d at 899 n.23.78 ‘hus, what is

required to satisfy the last element of a

RICO substantive offense--that the defen-

dant participated in the conduct of the

affairs of the enterprise through a pat-

tern of racketeering activity--is a rela-

tion between the predicate offenses and

the affairs of the enterprise. See

Martino, 648 F.2d at 403 ("Congress

decreed that by committing two of the

designated predicate crimes related to the

affairs of the ‘enterprise,’ a person

A-67

participates in the enterprise and thus

violates RICO.") (emphasis added). To

require that the racketeering activities

benefit the enterprise would impose a

severe--and, in the view of this Court,

congressionally unintended--restriction on

the elimination of organized crime in

legitimate businesses and governmental

entities, 7?

The purpose of RICO is "to seek the

eradication of organized crime in the

United States ...." 18 U.S.C.A. § 1961

note (West Supp. 1981). In its Statement

of Findings ant Purpose, Congress ex-

pressed a concern for the increasing use

by organized crime of money and power "to

infiltrate and corrupt legitimate business

and labor unions and to subvert and cor-

rupt our democratic processes." Id. We

find no evidence that Congress did not

intend section 1962(c) to reach situations

in which the power and authority of a

governmental entity is utilized to enable

those associated with that entity to

engage in racketeering. In such a situa-

tion, as in the case sub judice, in view

of the link between the enterprise--which

makes possible the racketeering activity

--and the racketeering activity itself, it

cannot be convincingly said that’ the

enterprise is not being conducted through

a pattern of racketeering activity. We do

not believe that Congress intended virtu-

ally to insulate governmental entities, or

other legitimate enterprises, which are

being operated by means of racketeering

activities, from prosecution under section

1962(c) by requiring that the business of

the enterprise be benefitted by the racke-

teering activity. Instead, we conclude

that by the use of the word “through,”

Congress intended only to require a suffi-

cient nexus between the _ racketeering

activities and the affairs of the enter-

prise.

A-69

LO ee

[25] Though the Government's evi-

dence indicated that the proceeds Welch

received from his racketeering activities

were kept by Welch for his own benefit, we

have concluded that this is not disposi-

tive of whether the affairs of the enter-

prise were conducted through a pattern of

racketeering activity. Nere, there is a

clear connection between the enterprise--

the Sheriff's Of fice--and the predicate

30 Welch

acts committed by Sheriff Welch.

utilized the power of the Sheriff's Office

for personal gain. The Sheriff's Office

was conducted through a system of discre-

tionary law enforcement--its members and

those associated with it continuously and

repeatediy failed to enforce the law in

return for pecuniary benefits. Without

the power and authority of the Sheriff's

Office, the defendants in this case (who

were all either members of the Sheriff's

Office or were associated with the Sher-

A-70

%”

a ene o

iff's Office in some way) would have been

unable to enter into agreements to refuse

to enforce the law or to receive payments

for their refusal to enforce the law. The

offenses were a part of a scheme to use

the Sheriff's Office for illicit profit-

making activities, The evidence in this

case shows that Welch did participate in

the affairs of the Sheriff's Office

through a pattern of racketeering activity.

The conclusion reached by the Bright Court

is equally applicable here:

The final element of a _ RICO

violation is proof that the defendant

participated in the affairs of the

enterprise through a pattern of

racketeering activity.... [Tjhis

case is distinguishable from those

where the pattern of racketeering

activity was not linked to. the

alleged enterprise's affairs. See

United States v. Mandel, 591 F.2d

A-71

= ee ee ee — -

1347, 1376 (4th Cir. 1979); United

States v. Nerone, 563 F.2d 836,

850-52 (7th Cir. 1977), cert. denied,

435 U.S. 951, 98 S.Ct. 1577, 55

L.Ed.2d 801 (1978). There was suffi-

cient evidence from which a jury

could find [the defendant] partici-

pated in the affairs of the Sheriff's

office by bribing the Sheriff.

Id. 630 F.2d at 830-31 (emphasis in origi-

nal).

B. Satterwhite

[26] Satterwhite argues first that

the evidence was insufficient to support

his conviction on the Count III conspiracy

charge. He claims that the evidence does

not show that he conspired with others to

obstruct the enforcement of the criminal

laws of Texas with intent to facilitate

illegal gambling. There was evidence at

trial that before Cantrell's game moved to

its new location, county employees using

A-72

, er

eee teen |

—

county equipment serviced the private

roads leading to the Foster farm. After

Cantrell decided to change the location of

the game to the Pat Smith place, but

before any gambling had taken place at the

new location, Satterwhite arrany d for

county employees working on county time

and using county equipment to build a

parking lot of slag behind the Pat Smith

house and to widen the driveway at the

house, Both the construction of the

parking lot and the widening of the drive-

way were initiated at the request of

Cantrell, One of Satterwhite's county

employees, Garland Grimes, testified at

trial that at a meeting with Cantrell and

Satterwhite (which took place after the

FBI raided Cantrell's game), he was told

to say that Cantrell had paid him to haul

the slag and that Satterwhite did not know

about the arrangement. In fact, the

testimony shows that Satterwhite had paid

A-73

__——

Grimes $60.00 with money from Cantrell to

31 This evidence provides a

do the job,

sufficient basis for the jury to conclude

beyond a reasonable doubt that Satterwhite

knew of the conspiracy and intentionally

performed acts in furtherance of it.

Thus, the jury could reasonably have

inferred the existence of an agreement,

Satterwhite's conviction on the Count III

conspiracy is therefore affirmed.

[27] Satterwhite also contends that

the evidence was insufficient to support

his conviction on Count V of the indict-

ment--the RICO charge. Satterwhite argues

that the Government failed to prove that

Satterwhite engaged in a pattern of racke-

teering. He maintains that the evidence

fails to show that he committed two predi-

cate acts, Satterwhite was only charged

with two predicate acts. The first was a

conspiracy to obstruct the enforcement of

the criminal laws of the State of Texas

A-74

Ce eee ee

~_-—-:

with intent to facilitate an illegal

gambling business--the Count III conspir-

acy involving Cantrell's game. We have

already decided above that the evidence

was sufficient to support Satterwhite's

conviction on this count; consequently,

the Government sustained its burden of

proving the first predicate act. Satter-

white was, in addition, charged with a

conspiracy to murder. If the evidence was

insufficient to conclude that Satterwhite

was a knowing participant in the murder

conspiracy, then Satterwhite's conviction

on the RICO charge was improper because

his participation in two predicate acts

was not proved,

We conclude that the evidence was

insufficient to prove Satterwhite's in-

volvement in the mrder conspiracy. >2 The

c tly evidence of Satterwhite's involvement

in the conspiracy was that Satterwhite

allowed Welch and his men to use

A-75

co —

—

Satterwhite’s County Barn as the location

for a stakeout. He helped Welch's men

arrange the stakeout by bringing a safe

and some bales of hay to the Barn. He

drove three deputies to the Barn in a

county dump truck, and unlocked the office

in which the deputies’ weapons had been

placed so that the deputies would have -

access to their weapons. This evidence is

insufficient to conclude that Satterwhite

knew of the conspiracy, that he intention-

ally performed acts in furtherance of the

conspiracy, or that he agreed to take part

in the conspiracy. Indeed, the evidence

might be construed as fully consistent

with the conclusion that Satterwhite

believed that members of the Sheriff's

Office intended to set up a legitimate

stakeout to apprehend several criminals.

Captain Don Hale, who was in charge of

planning and setting up the stakeout,

testified at trial that he did not know

A-76

5 Oe ene a

’

++ +. ‘

——— a =“ te

whether Satterwhite was aware of the

purpose of the plan. There is no indica-

tion that Satterwhite knew that the sher-

iff, or anyone in the Sheriff's Office,

intended to murder an undercover informant

who had committed a serious crime. Since

the Government only proved that

Satterwhite committed one predicate act,

Satterwhite’s conviction on the RICO count

must be reversed, >?

C. Cochran

[28] Cochran contends that the evi-

dence is insufficient to sustain his

conviction on the Count III conspiracy.

charge. Specifically, Cochran notes that

he retired as a deputy sheriff in May

1976--three years before any arrests were

made in connection with the charges

brought in this case, and that there was

no evidence in the record that he had ever

been to the Pat Smith place. In addition,

although Cochran responded to a distur-

A-77

—

bance call at the Foster farm on one

occasion, he claims that there is no

evidence that he knew illegaly gambling

was going on at that location or that he

was part of a conspiracy to facilitate

illegal gambling.

Contrary to Cochran's allegations,

there is substantial evidence to support

his conspiracy conviction. There is a

good deal of evidence that Cochran was

aware of the existence of illegal gambling

in Gregg County. In fact, Cochran

admitted that it was "fairly common"

knowledge that gambling occurred at the

Foster farm, In addition, after he

retired from the Sheriff's Office, on two

occasions Cochran hosted barbecues at

which some gambling occurred. Thereafter

he “got word"--apparently from Welch--that

it was not a good idea for him to be

gambling at his place. Cochran told Texas

Ranger Glenn Elliott that he did not

A-78

ter

Oe en

—_—_—-—s9

Cc. Ca Goa

understand how he could be “reprimanded

for having played craps out at my place on

two occasions when I had a barbecue and

fish fry where there was as much gambling

as apparently went on in the County." The

evidence revealed that on one occasion,

Deputies Ira Scott and Jim Montgomery

responded to a disburbance call involving

gunfire at the Foster farm. A gambling

game was in progress there at that time,

After the two deputies were dispatched to

the game site, Cochran asked Welch whether

he should handle the problem himself, and

Welch agreed that Cochran should take care

of the matter. Cochran arrived at the

Foster farm shortly after Scott and

Montgomery had apprehended two men, one of

whom possessed a shotgun. Cochran dis-

missed the two deputies after telling them

that he knew the people at the Foster farm

were having a little game and that every-

thing was alright. He then released the

A-79

tor

Se Oe een OD

a eee ek

C23

two men who had been detained. There was

never an investigation or report on the

shooting or the gambling that night,

These facts--Cochran's admission that he

knew of the gambling going on at _ the

Foster farm, his consultation with Welch

as to whether he should personally handle

the disturbance at the Foster farm, and

his failure to investigate, report, or

close down the illegal gambling--provide

sufficient evidence from which the jury

could have concluded beyond a reasonable

doubt that Cochran knew of the conspiracy

and intentionally performed acts in fur-

therance of the conspiracy. His agreement

to join the conspiracy can reasonably be

inferred from these conclusions. We

cannot say that a reasonable jury could

not find the evidence inconsistent with

all reasonable hypotheses of Cochran's

innocence, Cochran's conviction on the

Count III conspiracy, therefore, must be

affirmed.

A-80

Cochran further contends that the

evidence was insufficient to support his

conviction on Count V. To support his

contention, Cochran argues’ that’ the

Government failed to prove that he com-

mitted two predicate acts of racketeering,

The Government charged three predicate

acts against Cochran, and proof of two of

them would support Cochran's conviction on

the RICO charge.

1. Count III Conspiracy

[29] The Count III conspiracy to

obstruct the enforcement of the criminal

laws of the State of Texas with intent to

facilitate an illegal gambling business--

Cantrell's game--was the first act of

racketeering asserted against Cochran. We

have already held above that the evidence

was sufficient to sustain the jury verdict

that Cochran was a participant in this

conspiracy, That Cochran retired from the

Sheriff's Office in May 1976, even though

A-81

“se

Sk ee ce ee

+ om

the conspiracy was alleged to have

remained in existence until January 17,

1979, does not suggest that the conspiracy

count was improperly alleged as a predi-

cate act. As we have previously noted,

see note 30 supra, an "association with"

an enterprise is prohibited by the sub-

stantive RICO provision; the. statute

applies to outsiders as well as to

insiders,

2. Conspiracy to Murder

[30] As stated earlier, Captain Don

Hale arranged with Sheriff Welch, in 1974,

to utilize an informant to apprehend two

suspected criminals (Makarski and Aldridge).

Cochran was the go-between between Welch

and Captain Hale (the informant's contact).

The informant--Larry Burke--planned to

commit a robbery at the Pines Motel in

order to gain the confidence of Makarski

and Aldridge. The incident at the Pines

Motel ended when Burke killed one woman

A-82

and severely wounded another. At trial,

Hale testified that before Burke admitted

to him that he had committed the murder,

Hale met with Cochran and told Cochran

that their undercover informant had been

at the Pines Motel and that he matched the

description of the murderer. Several days

later, Burke called Hale and, with the

approval of Sheriff Welch and Cochran,

Hale met with Burke, According to Hale,

Welch and Cochran directed him not to

arrest the informant at their meeting, but

instead simply_to gather information. At

that meeting, Burke admitted to Hale that

he had committed the murder at the Pines

Motel. After the meeting Hale reported

back to Welch and Cochran, revealing the

identity of the informant and the fact

that the informant had confessed.

Hale then testified that Sheriff

Welch devised a plan whereby Hale was to

set up a stakeout, lure the informant to

A-83

the location by giving him information

that, on a certain date, $60,000 in polit-

ical contributions would be located in a

safe there, and then kill the informant

(and whoever might be with him) when he

attempted to rob the safe. Hale testified

as follows with respect to the plan:

A. The plan, as it seems, was to

kill Mr. Burke when he attempted

to rob the safe.

Q. All right. By himself?

A. We had no idea who would be with

him. Perhaps Mr. Makarski and

Mr. Aldridge.

Q. All right, sir. Did the Sheriff

tell you why he wanted to kill

Mr. Burke?

A. Well, to me it was explained

that it would be easier to make

him a hero in working with the

Police Department than arresting

him for murder.

A-84

‘

| .

{

7 A.

—

———

All right. Now, did he give you

any directions with regard to

how you were going to do this

murder?

I was to pick the crew that I

needed, and we would have a

session or so practice, and the

time to cover this area was

designated on the week-end. We

would cover it two nights, and

the money would be picked up

Sunday morning and taken back to

the Sheriff's office for distri-

bution, buying favors and what-

have-you, so this gave us a time

period,

All the Sheriff

right, Was

alone when he told you about

this?

No, sir, Jim Cochran was there.

So during all this planning

stage, Mr. Cochran was present?

A-85

Se ee ee

2 ree _

A. Yes, sir, he sure was.

Hale further testified that he told the

other deputies who were to help him carry

out the plan exactly what had been told to

him--"that if the man entered the building

he was not to leave." When Aldridge and

Makarski arrived at the County Barn, they

saw one of the deputies inside and, though

the deputy fired at them, they were able

to escape. A week or so after the stake-

out at the County Barn, Cochran told Hale

that Welch wanted Hale to resign.

Cochran alleges that the Government

failed to prove that Cochran participated

in devising the plan to kill the informant

or that he wilfully became a member of the

conspiracy. The evidence shows (1) that

Hale told Cochran and Welch that the

informant might have murdered someone; (2)

that, with the approval of Sheriff Welch,

Hale set up a meeting with the informant

and that Cochran and Welch directed Hale

A-86

——

not to arrest the informant at that time;

(3) that Hale discovered that the infor-

mant actually had committed a murder and

he relayed that information to Cochran and

Welch; and (4) that Cochran was present

when Welch directed Hale to set up the

stakeout and kill the informant, In

addition, the informant Larry Burke testi-

fied that at his murder trial, his attor-

ney asked Cochran "how they intended to

explain away [Burke's] death." According

to Burke, "Mr. Cochran had said that they

decided to tell my people that I had been

killed in a burglary, rather than admit

that I'd been involved in such a heinous

crime as murder." This evidence is suffi-

cient to support the conclusion. that

Cochran was a participant in the conspir-

acy to murder the informant. A reasonable

jury could believe that this evidence

excluded every other reasonable hypothesis

than that of guilt. There is substantial

A-87

evidence to support a conviction on the

conspiracy charge."

3. Bribery

[31] Finally, Cochran argues that

the Government failed to prove that Coch-

ran exercised his discretion as a public

servant to allow a private club to operate

in an unlawful manner. Cochran contends

that there was no evidence that any il-

legal activity was taking place at the

club or the motel connected with the club,

In addition, he contends that there was no

evidence of any agreement that Cochran

would allow the club or the motel to

operate in an unlawful manner in return

for money.

Jerry Don Stewart supervised the

operation of the Patriot Motel, which

consisted of a restaurant, a private club,

and a motel complex. Stewart testified at

trial that he gave Cochran $100 on approx-

imately three occasions in 1973, and that

A-88

te ee

Cochran accepted the money. According to

his testimony, he hoped that by giving

money to the Sheriff's Office, the club

and motel that he was supervising would

not be harassed. In addition, there was

testimony that the club was not. strict

about staying open after closing hours and

that Stewart planned to hire some prosti-

tutes to work at the motel. Despite the

lack of direct evidence of an agreement

between Cochran and Stewart, the evidence

is sufficient for a jury to conclude that

Cochran intentionally accepted a pecuniary

benefit as consideration for the exercise

of his discretion as a public’ servant;

i.e., as consideration for overlooking

certain illegal activites occurring at the

Patriot Club or Motel.

[32] Like Welch, Cochran contends

that the acts of bribery were actually

only acts of official misconduct under

Tex. Penal Code Ann. tit. 8, §39.01(a)(1)-

A-89

(4) (Vernon 1974). Offenses under this

section are misdemeanors and cannot serve

as predicate acts for a RICO conviction,

Thus, Cochran argues that the district

court erred in failing to dismiss from the

indictment the predicate act alleging

bribery. Cochran's argument is premised

upon the rule of statutory construction

that when a general statute is in conflict

with a more ‘detailed statute, the latter

will control unless it appears that the

legislature intended to make the more

general statute’ controlling. See Ex Parte

Harrell, 542 S.W.2d 169 (Tex.Crim.App.

1976). Cochran's argument cannot prevail.

First, the allegations against Cochran--

that he accepted money from Jerry Don

Stewart as consideration for allowing the

club at the Patriot Motel to operate in an

unlawful manner--fall squarely within the

provisions of the Texas bribery statute.

See Mahome v. State, 542 S.W.2d 177 (Tex,

A-99

~~ ee - .

Crim.App. 1976) (defendant's conviction

for bribery under section 36.02(a)(1)

affirmed when evidence showed that defen-

dant offered a police officer money to

prevent his arrest for driving while

intoxicated). Second, even if this is a

situation in which two statutes relating

to the same subject matter must be harmon-

ized, this Court finds no authority--and

none has been offered by the defendant--

that the official misconduct statute is

more specific than the bribery statute,

Indeed, it would appear that the bribery

statute, which requires acceptance of a

pecuniary benefit as consideration for the

action by the recipient, is more specific

than the official misconduct statute,

which merely requires that the _ public

servant act with intent to obtain a bene-

fit for himself.

The bribery charge was’. properly

included as a predicate act in Count V of

A-91

= te — ce — te eee ss

the indictment and, since the Government

proved Cochran's participation in two

predicate crimes, the evidence is suffi-

cient to sustain Cochran's RICO convic-

tion.

D. Cashell

{33] Cashell contends that’ the

evidence was insufficient to sustain his

conviction on the Count IV conspiracy--

conspiracy to obstruct the enforcement of

the criminal laws of the State of Texas

with intent to facilitate an illegal

gambling business (the gambling at the

fairgrounds). Cashell claims that he

evidence’ shows ‘nothing more than his

presence at the fairgrounds. Although he

received money at the close of the 1978

fair, he claims that there was no evidence

that he had agreed to refuse to enforce

the penal laws with respect to gambling.

Moreover, Cashell argues that there was no

evidence that he refused to accept a

A-92

complaint from any person or that he took

any other action to obstruct the enforce-

ment of the criminal laws.

Although Cashell was not hired by the

Jaycees to work as a security guard at the

fair, he regularly patrolled the midway

area of the fair--wearing his gun--every

night of the 1978 fair. Harley Dilday, a

Jaycees member who was in charge of secu-

rity for the 1978 fair, testified that

Deputy Roach (who secured personnel from

the Sheriff's Office to maintain security

on the fairgrounds) requested that the

Jaycees keep the Longview City Police and

others away from the midway area, On a

number of occasions, Roach ordered depu-

ties who were not authorized to patrol the

midway to leave that area. Cashell (along

with certain members of the Sheriff's

Office and an investigator for the Dis-

trict Attorney's Office), however, was

permited to patrol the midway on a regular

basis.

A-93

‘oe

There was evidence introduced at

trial that concession manager Schlar paid

money to the men who patrolled the midway

at the fair to prevent them from closing

down the illegal games. Cashell himself

received $300 after the 1978 fair. Frank

Odom, an investigator for the District

Attorney's Office in Gregg County, testi-

fied that he had been present when Cashell

received gambling complaints and_ that

Cashell had never directed him (or any law

enforcement officer) to investigate the

complaints or to shut down the illegal

gembling games. At trial, FBI Agent Earl

Starks testified that during a conversa-

tion he had with Cashell at the Cote.

Cashell told him that "a person would have

much better odds of coming out ahead if he

was to take a Thousand Dollars to go to

Las Vegas and bet it there. He could come

out ahead, even paying his expenses and

coming back, over gambling there at the

A-94

Fair." ~The evidence establishes’ that

Cashell knew that illegal gambling

occurred at the fair, that he patrolled

the midway where gambling occurred and

never took any action to close down the

iliegal games or to cause an investigation

of the illegal games, and that he was paid

money at the close of the 1978 fair. From

Cashell's knowledge and his intentional

actions in furtherance of the conspiracy,

the jury could reasonably infer that he

agreed to join the conspiracy. There is

sufficient evidence to support Cashell's

convicton on Count IV. ‘

Cashell also claims that the evidence

was insufficient to convict him on the

Count V RICO charge. In order to satisfy

the requirements of the RICO charge, the

Government was required to prove that

Cashell engaged in two predicate acts of

racketeering. The indictment’ charged

Cashell with three acts of racketeering:

A-95

4>-wrentnten tte

(1) the Count IV conspiracy, (2) accepting

a pecuniary benefit from Schlar as consid-

eration for the exercise of his discretion

as a public servant, and (3) accepting a

pecuniary benefit as consideration for the

exercise of his discretion as a public

servant in obtaining driver's’ license

information through the Sheriff's Office,

1. Count IV Conspiracy

We have already determined above that

the evidence was sufficient to support

Cashell's conviction on the Count IV

conspiracy charge. That conspiracy,

therefore, constitutes one predicate act

of racketeering.

2. Bribery at the Fairgrounds

[34] Cashell argues that his accep-

tance of money at the end of the 1978 fair

did not constitute an act of bribery,

Rather, he claims, if it was an offense at

all, it was merely a misdemeanor--compen-

sation for past official behavior under

A-96

ae setae /

eee

Tex.Penal Code Ann. tit. 8, § 36.07

(Vernon Supp. 1980). Section 36.07(b)

states:

A public’ servant commits an

offense if he intentionally or know-

ingly solicits, accepts, or agrees to

accept any pecuniary benefit for

having exercised his official powers

or performed his official duties in

favor of another.

As a misdemeanor, this could not serve as

a predicate offense for a substantive RICO

count. The Practice Commentary following

the statute states:

This offense is a lessor in-

cluded offense of bribery since the

accused may be suspected of bribery

but the state unable to prove that

there was any direct’ relationship

between anticipation of compensation

and the official action.... On the

other hand, assuming that the offi-

. =

cial action has not been influenced

in advance by promise of gain, the

consequence of a violation of this

section is less serious than the harm

of bribery and the misdemeanor penal-

ty is therefore appropriate,

Cashell contends that since there was no

prior agreement between Cashell and Schlar

that Schlar would pay Cashell money,

Cashell could not have violated the brib-

ery statute,

Admittecly, the evidence indicates

that none of the men patrolling the midway

knew exactly how much money they would

receive at the close of the fair. Schlar

testified that he did not make a specific

agreement with Cashell as to the amount of

money that Schlar would pay Cashell after

the fair. The evidence also shows, how-

ever, that although there was no agreement

specifying the amount of money that would

be paid, the men who patrolled the midway

A-98

knew that they would receive some amount

of money at the end of the fair. Thus, it

appears that there was a direct relation-

ship between Cashell's anticipation of

compensation and his official action. The

circumstances surrounding the payment from

Schlar to Cashell evidence the more ser-

ious violation contemplated by the Texas

bribery statute. The Government properly

alleged a bribery count (which, as a

felony, can serve as a predicate crime)

rather than compensation for past official

behavior, a misdemeanor.

Cashell exguee that if the Covernment

properly alleged a charge of bribery, then

the evidence was insufficient to prove

that Cashell exercised his discretion as a

public servant in allowing illegal gam-

bling at the fairgrounds. To support this

contention, Cashell claims that while he

was patrolling at the fairgrounds, he had

no authority to shut down the games, to

A-99

ee ee

Om Coa. Go

accept a complaint (unless the justice of

the peace in whose jurisdiction the case

was filed was unavailable), or to arrest

the gamblers.

[35] The Texas Code of Criminal

Procedure provides that a justice of the

peace “is a magistrate within the meaning

of this Code." Tex.Code Crim.Pro.Ann,

art. 2.09 (Vernon 1977). The general

duties of a magistrate are

to preserve the peace within his

jurisdiction by the use of all lawful

means; to issue all process intended

to aid in preventing and suppressing

crime; to cause the arrest of offen-

ders by the use of lawful means in

order that they may be brought to

punishment.

Id. art. 2.10. More specifically, a

magistrate has a duty to prevent offenses

under certain circumstances, Tex .Code

A-100

tor

Crim.Pro.Ann. art. 6.03 (Vernon Supp.

aE 1980) states:

( Whenever, in the presence or

within the observation of a magis-

trate, an attempt is made by one

person to inflict an injury upon

L himself or to the person or property

_ of another, including the person or

property of his spouse, it is his

| duty to use all lawful means to

| prevent the injury. This may be

¥ done, either by verbal order to a

. peace officer to interfere and pre-

| vent the injury, or by the issuance

of an order of arrest against the

offender, or by arresting the offen-

der; for which purpose he may call

upon all persons present to assist in

i making the arrest.

F; It is clear that a magistrate who observed

| illegal gambling at a place within his

ws,

B |

a A-101

4 ae ee

———«

‘

LI LO LS LL I ae — es eye eee =

jurisdiction would have a duty to take

some action to stop the gambling.

{ 36] Cashell admits that a magis-

trate has a duty to "cause the arrest of

offenders by the use of lawful means in

order that they may be brought to punish-

ment." However, Cashell contends that he

was not acting as a magistrate when he was

patrolling the midway at the fair. Gener-

ally, the jurisdiction of a justice of the

peace is circumscribed by the limits of

his precinct. When a justice of the peace

is acting as a magistrate, his judicial

authority is coextensive with his county,

Ex parte Clear, 573 S.W.2d 224, 228 (Tex.

Crim.App. 1978) (en banc). The fair was

located within Gregg County, but outside

Cashell's precinct. If Cashell was not

acting as a magistrate at the fair, it

would appear that he would not be guilty

of bribery since, while outside his juris-

diction, he had no authority to exercise

A-102

official powers or to perform official

duties as a public servant.

[37] Cashell correctly maintains

that a justice of the peace is a magis-

trate when he sits for the purpose of

inquiring into a criminal accusation

against any person. It is true that when

a justice of the peace holds an examining

trial he sits as a magistrate. Yet there

is no evidence that this is the only

circumstance under which a justice of the

peace acts as a magistrate. The Code of

Criminal Procedure explicitly states that

a justice of the peace is a magistrate

within the meaning of the Code, The

Statutory language compels this Court to

conclude that Cashell had the authority--

and the duty--of a magistrate when he

viewed illegal gambling taking place at

the fairgrounds.

(38) Finally, Cashell argues that

the Government should have been compelled

A-103

to elect between the predicate acts of the

fairground conspiracy and the acceptance

of the bribe since both acts arose out of

the same transaction. Cashell argues that

Congress did not contemplate, when it

passed the RICO statute, that a defendant

could be convicted of a substantive RICO

offense on the basis of two predicate acts

arising out of a single transaction. The

offenses alleged as predicate acts were

separate acts and were properly alleged in

the indictment and proved at trial as two

separate predicates acts. Cashell's

contention that the district court should

have required the government to elect

between the two counts is without merit,

Also without merit is Cashell's argument

that the predicate offenses charged

against him constitute only’ sporadic

activity that was not intended to be

covered by a_ substantive RICO charge.

A-104

ter

ec eee ee + ee - e

[39] Inasmuch as_ the Government

proved Cashell's participation in two acts

of racketeering--the Count IV conspiracy

and the bribery at the fairgrounds--we

need not address his arguments’ with

respect to the third predicate offense

involving the sale of driver's license

information, >> Cashell's conviction on

the Count V RICO charge must be affirmed.

IV. Conclusion

Satterwhite’s conviction on the Count

V RICO charge is REVERSED. The convic-

tions of Cochran, Welch, and Cashell on

the Count V RICO charge are AFFIRMED. The

convictions of Cochran, Satterwhite, and

Welch on the Count III conspiracy are

AFFIRMED. The convictions of Welch and

Cashell on the Count IV conspiracy are

AFFIRMED.

A-105

be «06 748° * Rae Oe

eee

FOOTNOTES

1. The Jaycees sponsored the fair and

were in charge of arranging for security.

During some years the Jaycees contracted

with private security firms to work at the

fair, and off-duty city policemen and

county deputies generally worked there as

well. Traditionally, certain members of

the Sheriff's Office patrolled the midway.

The Jaycees had no control over which

officers would be hired to work at the

fair, or what areas they would be assigned

to patrol.

2. With respect to the payments. to

Welch, Schlar testified as follows:

Q. Mr. Sclar, in 1977, did you pay

Sheriff Tom Welch $1,000.00?

A. Yes, I did.

Q. Did you pay Sheriff Tom Welch

$1,000.00 again in 1978?

A. Yes, I did.

Q. Now, sir, would you please tell

members of the Jury where and

how you paid the Sheriff those

$2,000.00?

A. I'm a little vague about '77. I

believe it was in two payments,

but I'm not certain whether it

was in his office, or at the

Midway. That's a little vague

in my mind. However, I know I

A-106

. tee

made two payments of $500.00

each,

Li Q. In 19772

A. Correct,

Q. All right, sir. What about

1978?

A. In 1978 I gave the _ Sheriff

$500.00 in his office on a

Thursday--I don't know the

dates--and the remaining $500.00

on a Saturday at the Fairgrounds.

Q. All right, sir. Mr. Sclar, why

did you give the Sheriff, Tom

: Welch, $1,000.00 both in 1977

and 1978?

A. Well, I would think for protec-

tion and freedom from harassment

from the Midway.

(- Q. Did that include illegal games

at the Midway?

A. I beg your pardon?

Q. Did that include freedom from

harassment and protection for

illegal games at the Midway?

A. For all games, illegal and

otherwise.

3. This incident involved Deputy Sheriff

(> Billy Ray Roach, who died during the

Lj pendency of this appeal.

A-107

--—-—..

----—

ne Actually, there was evidence at trial

that information intended to _ induce

Makarski and Aldridge to commit a robbery

at a pre-designated place had been sup-

plied to Burke prior to the incident at

the Pines Motel. According to Hale,

however, the plan to kill Burke, Makarski,

and Aldridge was devised only after the

murder at the Pines,

3° During the time period involved in

this case, in addition to their involve-

ment in Cantrell's game, the gambling at

the fairgrounds, and the Barn stakeout,

the defendants were also involved in

various other illegal acts. Sheriff Welch

and Chief Deputy Cochran accepted money

from a motel and club operator, apparently

in return for allowing the club to remain

open after hours. Welch also gave special

consideration to a number of prisoners in

the county jail in return for the work

they performed on his farm. Justice of

. the Peace Cashell obtained driver's

license information through the Sheriff's

Office and sold it to various trucking

companies,

* Raymond Cantrell was severed from the

indictment prior to trial.

vs Section 1511 provides:

(a) It shall be unlawful for

two or more persons to conspire to

obstruct the enforcement of _ the

criminal laws of a State or political

subdivision thereof, with the intent

to facilitate an illegal gambling

business if--

A-108

—

(1) one or more of such persons

does any act to effect the

object of such a_ conspiracy;

(2) one or more of such persons

is an official or employee,

elected, appointed, or other-

wise, of such State or political

subdivision; and

(3) one or more of such persons

conducts, finances, manages,

supervises, directs, or owns all

or part of an illegal gambling

business,

(b) As used in this section--

(1) “illegal gambling business"

means a gambling business which--

(i) is a violation of the law

of a State or political subdivi-

sion in which it is conducted;

(ii) involves five or more

persons who conduct, finance,

manage, supervise, direct, or

own all or part of such busi-

ness; and

(iii) has been or remains in

substantially continuous opera-

tion for a period in excess of

thirty days or has a_= gross

eae of $2,000 in any single

ay.

(2) "“gambling" includes but is

not limited to pool-selling,

bookmaking, maintaining’ slot

machines, roulette wheels, or

dice tables, and _ conducting

lotteries, policy, bolita or

numbers games, or selling

chances therein.

(3) "State" means any State of

the United States, the District

of Columbia, the Commonwealth of

Puerto Rico, and any territory

or possession of the United

States.

A-109

a eee

’

apply to any bingo game, lottery, or

similar game of chance conducted by

an organization exempt from tax under

paragraph (3) of subsection (c) of

section 501 of the Internal Revenue

Code of 1954, as amended, if no part

of the gross receipts derived from

such activity inures to the benefit

of any private shareholder, member,

or employee of such organization,

except as compensation for actual

expenses incurred by him in_ the

conduct of such activity.

(d) Whoever violates this

section shall be punished by a fine

of not more than $20,000 or imprison-

mar for not more than five years, or

both.

8. Billy Bryan was severed from _ the

indictment before the trial.

9. Billy Roach died during the pendency

of this appeal.

10. Section 1962(c), which is one of the

substantive provisions of he Racketeer

Influenced and Corrupt Organizations Act

(RICO), provides:

Tt shall be unlav“ul for an

person employed by or associated wit

any enterprise engaged in, or the

activities of which affect, inter-

state or foreign commerce, to conduct

or participate, directly or indir-

ectly, in the conduct of such enter-

prise's affairs through a pattern of

racketeering activity or collection

of unlawful debt.

A-110

‘o,/

i ee |

—— te

———

" ;

i. This allegation is the same as Count

III and involved the - gambling’ at

Cantrell's game.

$2. This is the same as Count IV and

involved the gambling at the fairgrounds,

13. Paragraphs H and I allege that Welch

accepted labor from certain individuals

confined in the Gregg County Jail as

consideration for exercising his discre-

tion as sheriff and not transporting these

people to the penitentiary at the Texas

Department of Corrections pursuant to a

lawful order. Paragraphs J, K, L, M, and

N allege that Welch accepted labor from

certain individuals confined in the jail

as consideration for exercising his dis-

cretion and granting these individuals

special privileges during their confine-

ment.

14. The act alleged in paragraph O of the

indictment was severed after the start of

the trial.

15. Count III was charged as predicate

act A under the RICO count, and Count IV

was charged as predicate act B.

16. For the text of section 1962(c), see

note 10 supra.

17. Section 1961(5) defines "pattern of

racketeering activity" as requiring “at

least two acts of racketeering activity,

one of which occurred after the effective

A-111

date of this chapter and the last of which

occurred within ten years (excluding any

period of imprisonment) after the commis-

sion of a prior act of racketeering

activity."

18. Section 1961(1) defines racketeering

activity as follows:

(1) "Racketeering activity"

means (A) any act or threat involving

murder, kidnaping, gambling, arson,

robbery, bribery, extortion or deal-

ing in narcotic or other dangerous

drugs, which is chargeable under

State law and punishable by imprison-

ment for more than one year; (B) any

act which is indictable under any of

the following provisions of title 18,

United States Code: Section 201

(relating to bribery), section 224

(relating to sports bribery), sec-

tions 471, 472, and 473 (relating to

counterfeiting), section 659 (relat-

ing to theft from interstate ship-

ment) if the act indictable under

section 659 is felonious, section 664

(relating to em»ezzlement from pen-

sion and welfare funds), sections

891-894 (relating to extortionate

credit transactions), section 1084

(relating to transmission of gambling

information), section 1341 (relating

to mail fraud), section 1343 (relat-

ing to wire fraud), section 1503

(relating to obstruction of justice),

section 1510 (relating to obstruction

of criminal investigations), section

1511 (relating to the obstruction of

State or local law enforcement),

section 1951 (relating to interfer-

ence with commerce, robbery, or

A-112

— —~-<- o— me eee ee _ - - -- _>

extortion), section 1952 (relating to

racketeering), section 1953 (relatin

to interstate transportation o

wagering paraphernalia), section 1954

(relating to unlawful welfare fund

payments), section 1955 (relating to

the prohibition of illegal gambling

businesses), section 2314 and 2315

(relating to interstate transporta-

tion of stolen property), sections

2341-2346 (relating to trafficking in

contraband cigarettes), sections

2421-24 (relating to white slave

traffic), (C) any act which is indict-

able under title 29, United States

Code, section 186 (dealing with

restrictions on payments and loans to

labor organizations) or section

50l(c) (relating to embezzlement from

union funds), or (D) any offense

involving fraud connected with a case

under Title 11, fraud in sale of

securities, or the felonious manufac-

ture, importation, receiving, conceal-

ment, buying, selling, or otherwise

dealing in narcotic or other danger-

ous drugs, punishable under any law

of the United States ....

19. The question whether § 1961(1), which

defines racketeering activity, includes as

racketeering activity conspiracies to

commit the substantive offenses listed

therein has been largely unaddressed in

this Circuit. See United States v,

Martino, 648 F.2d 367, 400 (Sth Cir. 198T)

(conspiracy to commit mail fraud was not

specifically included in § 1961(1)(B) as

an act of racketeering activity; conse-

quently, it cannot serve as a predicate

offense); United States v. Weisman, 624

F.2d 1118, 1123-24 (2d Cir.) ("(WJe think

A-113

as eo oe

that conspiracy can properly be charged as

a predicate act of racketeering under

RICO, at least when it involves any of the

substantive offenses listed in _ section

1961(1)(D).... [The language in that

provision] is certainly broad enough on

its fact to include conspiracies involving

securities and bankruptcy fraud and drug

related offenses. The deletion of con-

spiracy from earlier drafts of RICO does

not undermine this conclusion.... [T]he

alterations of section 1961(1) are most

logically interpreted as an attempt to

restrict the conspiracies chargeable as

predicate offenses to those _ involving

offenses listed in subsection (D)."),

cert. denied, --U.S.--, 101 S.Ct. 209, 66

L.Ed.2d 91 (1980). Whether or not con-

spiracies that are not specifically listed

in subsections A through C of § 1961(1)

can serve as predicate acts, §1961(1)(B)

provides in part that racketeering activ-

ity means “any act which is indictable

under ... section 1511 [of title 18,

United States Code] ...." Section 1511

prohibits conspiracy to obstruct’ the

enforcement of the criminal laws of a

State with the intent to facilitate an

illegal gambling business. See note 7

supra. Thus, the conspiracies charged in

Counts III and IV are properly listed as

predicate acts under the substantive RICO

count.

20. Several Fifth Circuit cases have

rejected claims of misjoinder under Rule

8(b) when the indictment charged both RICO

conspiracy and RICO substantive counts,

See United States v. Stratton, 649 F.2d

1066, at 1074 n.8 (5th Cir. 1981); Martino,

648 F.2d at 385; United States v. Bright,

630 F.2d 804, 812-13 (5th Cir. 1980). We

A-114

have not, however, been directed to any

discussion of Rule 8(b) joinder in Fifth

Circuit cases in which only a RICO sub-

stantive count and no RICO conspiracy

count was charged.

“i. In addition to the contentions of

misjoinder, several defendants also claim

that the indictment was multiplicious,.

They contend that by including in a single

indictment two separate conspiracies on

the one hand, and a substantive RICO count

that included both conspiracies as predi-

cate acts on the other hand, the Govern-

ment was able to "secure the ‘imposition of

three separate sentences for conduct that

was in every way identical." This argu-

ment is without’ merit. The charged

offenses--the Count III conspiracy, the

Count IV conspiracy, and the Count V RICO

charge--were each separate offenses; thus,

‘the inclusion of the three counts in a

single indictment did not result in a

multiplicious indictment. See United

States v. Boylan, 620 F.2d 359 (2d Cir.),

cert. denie --U.S.--, 101 S.Ct. 103, 66

Le Ed.2d 38 (1980); United States v. Aleman,

609 F.2d 298, 306-07 (7th Cir.

cert. denied, 445 U.S. 946, 100 S. Ct.

63 L.Ed.2d 780 (1980); United States

Vv. Rone, 598 F.2d 564, 571-72 (9th Cir.

1979), cert. denied, 445 U.S. 946, 100

S.Ct. 1345, 63 L.Ed. 780 (1980). Moreover,

the defendants argue that it is the inclu-

sion of Counts III and IV in the same

indictmeat with Count V that raises the

multiplicity problem. Even if the joinder

of these counts was multiplicious, no

reversal is required since the sentences

imposed on Counts III and IV in all cases

are to run concurrently with the sentences

imposed on Count V. See United States v.

A-115

ite |

aehecetm—so

;

Lentz, 624 F.2d 1280, 1289 (5th Cir.

T9800), cert. denied, --U.S.--, 101 S.Ct.

1696, 68 L.Ed.2d 194 (1981).

22. 4 gambling business in violation of

-Texas laws must be alleged and proved

before there is a violation of § 15ll.

See United States v. Thaggard, 477 F.2d

626, 631 (5th Cir.), cert. denied, 414

U.S. 1064, 94 S.Ct. 5/70, 38 L.Ed.2d 469

(1973); United States v. Garrison, 348

F.Supp. 1112, T120-22 “(E.D.La. 1972).

Here, the pertinent Texas law _ states:

§ 47.03 Gambling Promotion

(a) A person commits an offense if

he intentionally or knowingly does

any of the following acts:

(1) operates or participates in

the earnings of a_ gambling

place;

(2) receives, records, or

forwards a bet or offer to bet;

(3) for gain, becomes a custo-

dian of anything of value bet or

offered to be bet;

(4) sells chances on the par-

tial or final result of or on

the margin of victory in any

= or contest or on the per-

ormance of any participant in

any game or contest or on the

result of any political nomina-

tion, appointment, or election

or on the degree of success of

any nominee, appointee, or

candidate; or

(5) for gain, sets up or pro-

motes any lottery or sells or

offers to sell or knowingly

possesses for transfer, or

transfers any card, stub, ticket,

A-116

check, or other device designed

to serve as evidence of partici-

pation in any lottery.

(b) An offense under this section is

a felony of the third degree.

Tex.Penal Code Ann. tit. 10, § 47.03

(Vernon 1974).

Section 1511, in addition, contains a

number of other requirements that consti-

tute essential elements of the offense,

See note 7 supra.

23. Under some federal statutes, agree-

ments to do unlawful acts alone are pro-

scribed; other federal statutes require

proof of an agreement and an overt act in

furtherance of it. The provisions of §

1511 require at least one conspirator to

do an act to effect the object of the

conspiracy.

24. This general principle of conspiracy

law--that actions taken by a person can

give rise to an inference of an agreement--

has, of course, also been recognized in

the context of RICO conspiracy.

To be convicted as a member of an

enterprise conspiracy, an individual,

by his words or actions, must have

objectively manifested an agreement

to participate, directly or indi-

rectly, in the affairs of an enter-

prise through the commission of two

or more cre ate crimes. One whose

agreement with the members of an

enterprise did not include this vital

element cannot be convicted under the

Act. Where, as here, the evidence

establishes that each defendant, over

A-117

. eee

a period of years, committed several

acts of racketeering activity in

furtherance of the’ enterprises's —

affairs, the inference of an agree-

ment to do so is unmistakable.

Elliott, 571 F.2d at 903 (emphasis in

original). See Martino, 648 F.2d at 383;

Bright, 63C F.2d at 834,

25. One of those counts was severed after

the start of trial.

26. Even apart from the above discussion,

under the Federal Rules of Criminal Proce-

dure, the alleged citation of the wrong

subpart of the Texas bribery statute in

this case would not require reversal of

the conviction. Fed.R.Crim.P. 7(c)(3)

provides as follows:

Harmless Error. Error in the

citation or its omission shall not be

ground for dismissal of the indict-

ment or information or for reversal

of a conviction if the error or

omission did not mislead the defen-

dant to his prejudice,

It is the rule in this Circuit that where

"the indictment contains the elements of

the offense charged and _ sufficiently

apprises the defendant so that he will not

be misled while preparing his defense" and

where "the defendant is protected against

another prosecution for the same offense,"

the indictment is not’ insufficient.

United States v. Welliver, 601 F.2d 203,

th Cir. 1979). That an indictment

contains a miscitation of a statute is not

grounds for dismissing the indictment when

A-118

the defendant is not misled or prejudiced

thereby. United States v. Hutcheson, 312

U.S. 219, 61 S.Ct. 463, 464-65, 85 L.Ed.

788 (1941); United States v. Garner, 529

F.2d 962, 966 (6th Cir.), cert. denied,

426 U.S. 922, 96 S.Ct. 2630, 49 L.Ed.2d

376 (1976) & 429 U.S. 850, 97 S.Ct. 138,

50 L.Ed.2d 124 (1976). Here, the facts

alleged in the indictment clearly charged

Welch with a violation of the Texas brib-

ery statute; Welch was not misled or

prejudiced by any possible miscitation of

the statute--indeed, he does not’ even

contend that he was either prejudiced or

misled by the possible miscitation of the

statute. The indictment was proper since

it “put the defendants on notice of the

offenses charged, advised them of the

facts giving rise to those offenses, and

furnished an adequate foundation for a

plea of double jeopardy in the event of a

future prosecution of the defendant for

the same conduct." United States v.

L'Hoste, 609 F.2d 796, 801 (5th Cir.)j,

cert. denied, --U.S.--, 101 S.Ct. 104, 66

L.Ed.2d 39 (1980). See United States v.

Uni Oil, Inc., 646 F.2d 946, 954 (5th Cir.

1981) ("Despite the government's failure

to allege each element of commercial

bribery separately, the indictment con-

tains copious facts which adequately

apprise the defendants of the nature of

the charge against them. Therefore, the

indictment's deficiency is not material."),

Finally, any variance that might have

existed between the indictment and the

proof at trial did not affect the substan-

tial rights of the parties.

27. Welch also relies upon United States

v. Nerone, 563 F.2d 836 (7th Cir. ;

cert. denied, 435 U.S. 951, 98 S.Ct. 1577,

A-119

oe ere ee ee

ee te

55 L.Ed.2d 801 (1978). The court in that

case concluded that the Government had

faileé to prove that the affairs of the

enterprise--Maple Manor, Inc., which

rented real estate upon which mobile homes

or trailers could be parked--were con-

ducted through a pattern of racketeering.

Rather, the court found that the affairs

of an illegal casino operation were con-

ducted chrough the mechanism of the mobile

home park corporation. In its discussion,

the court stated:

On this appeal, it is clear to

us that the Government has been argu-

ing that the casino operation, which

was itself arguably a _ prohibited

enterprise ese, was facilitated

through the cover of a legitimate

enterprise. This court can readily

agree that the jury could infer that

such was the fact. The problem with

the Government's case, however, is

that the indictment charged that the

affairs of the mobile home park

corporation, not the casino opera-

tion, were conducted through a pat-

tern of racketeering activity. Our

examination of the record leaves us

with the abiding conviction that the

Government never really crystalized

its theory of the case. It made no

attempt to show that the proceeds of

the casino operation were invested in

Maple Manor, Inc. Nor did it endea-

vor to show that gambling revenues

were used by or in any way channeled

into the corporation or that persons

were paid out of gambling revenues to

perform services for Maple Manor,

Inc.

Id. at 851.

A-120

-_—_——-

— ——

28. The Bright Court concluded that the

requirement of a relationship between the

predicate crimes and the affairs of the

enterprise served to establish the exis-

tence of a pattern of racketeering acti-

=: 630 F.2d at pon yo —— pata

did not expressly require such a relation-

ship in its determination of whether the

defendant participated in the affairs of

the enterprise through a pattern of rack-

eteering activity. d. at 830-31. How-

ever, its conclusion that the final ele-

ment of the RICO violation was satisfied

because the pattern of racketeering acti-

vity was linked to the enterprise's

affairs suggests that such a connection

satisfies the requirement that the defen-

dant participate in the affairs of the

enterprise through a pattern of racketeer-

ing activity. See id.

~ The Eighth Circuit noted that:

With [section 1961(b) and (c)],

consideration must also be given to

the requirement that the defendant

operate "through" a pattern of rack-

eteering activity. This element

practically vanishes along with the

enterprise element whenever’ the

enterprise is defined as the associa-

tion to commit the _ racketeering

activity, but it can pose substantive

limitations on prosecutorial zeal in

the setting of infiltration of legi-

timate business.

United States v. Anderson, 626 F.2d 1358,

n.13 (8th Cir. 1980), cert. denied, --

U.S. --, 101 S.Ct. 1751, 67 L.Ed.2d 336

(1981). We do not believe that by the use

of the word "through," Congress intended

A-121

: to create additional limitations on the

use of RICO to eradicate the infiltration

; of legitimate businesses by organized

crime,

l: 30. Similarly, there is a _ substantial

connection between the Sheriff's Office

and the redicate acts committed by

7 Cochran and Cashell. Thus, Cochran and

| Cashell also participated in the affairs

of the enterprise through a pattern of

= racketeering activity. It is of no moment

| that Cashell was not employed by the

Sheriff's Office. "'The substantive

proscriptions of the RICO statute apply to

i fo insiders and outsiders--those merely

“associated with” an enterprise--who

participate directly and indirectly in the

- enterprises's affairs through a pattern of

racketeering activity.'" Martino, 648

‘Bs F.2d at 394 (quoting Elliott, 571 F.2d at

903) (emphasis in original).

31. Three other county employees also

worked on the parking lot; one of them was

paid $40.00 by Satterwhite for his work.

32. It is not yet settled whether a

charge of conspiracy to murder is a proper

predicate act for a RICO charge. Section

' 1961(1)(A)- lists “any act or threat involv-

; tJ ing murder" as racketeering activity. The

Second Circuit has decided that conspira-

| cies to commit offenses listed in § 1961

[? (1)(D) can properly be charged as predi-

cate acts of racketeering. Weisman, 624

F.2d at 1123-24. The Second Circuit

distinguished between the language of

- subsection D, which includes as _ racket-

eering activity "any offense" involving

f A-122

’

onmet e+ ce ae eeew

——

certain crimes, and the language of sub-

sections A-C, which appeared to that

circuit to be somewhat more _ limited.

Subsection A _ includes as racketeering

activity “any act or threat involving

(emphasis added) certain crimes; sub-

section B refers to "any act which is

indictable" under certain provisions of

Title 18 of the United States Code; and

subsection C refers to “any act which is

indictable" under certain provisions of

Title 29 of the United States Code. There

is merit to the argument that the language

of subsection A is as broad and inclusive

as the language of subsection D, If

conspiracy to commit a_ subsection D

offense can serve as a predicate act for a

RICO charge, then conspiracy to commit a

subsection A offense should also be able

to serve as a predicate act. The language

of subsection A itself--which includes

“any act or threat involving murder"--

appears to contemplate a conspiracy to

commit murder. A conspiracy to commit

murder is an act involving murder. How-

ever, in view of our conclusion that the

evidence was insufficient to prove that

Satterwhite was involved in .the murder

conspiracy, we need not decide whether the

charge of conspiracy to murder was prop-

erly alleged as a predicate act.

33. Because we reverse Satterwhite's RICO

conviction on the ground that the Govern-

ment failed to prove that Satterwhite

committed two predicate acts, we need not

address. Satterwhite'’s argument that the

Government failed to prove an interrela-

tionship between the alleged predicate

acts. That argument, at any rate, has

previously been considered and rejected by

this Court. Elliott, 571 F.2d at 899

n.23.

A-123

~—

te Although the Count III conspiracy and

the conspiracy to murder together provide

the pattern of racketeering activity

necessary to support Cochran's Count V

RICO conviction, inasmuch as we have not

explicitly held that a conspiracy to

murder can serve as a predicate crime for

a RICO conviction, see notes 19, 32 supra,

we will also examine the evidence sup-

porting the third predicate act alleged

against Cochran.

35. One argument raised by Cashell is

that predicate act P--accepting a pecuni-

ary benefit as consideration for the

exercise of his discretion as a public

servant in obtaining driver's license

information through the Sheriff's Office--

did not constitute the offense of bribery

under state law. Cashell maintains that

if this conduct was an offense at all, it

was only an act of official misconduct,

Tex. Penal Code Ann, tit. 8, § 39.01

(Vernon 1974), and not an act of bribery,

id. § 36.02 (Vernon Supp.1980). Even if

this contention is true--which we need not

decide--Cashell does not argue that preju-

dice arose from the inclusion of this

charge in the indictment or from _ the

evidence introduced to support this charge

at trial. Thus, any possible error in the

inclusion of this offense would not

require a reversal of Cashell's conviction.

A-124

te”

ee ee ee

— ew -

—_ 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT A

No. 80-1044

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus ;

TOM WELCH, CHARLES CASHELL,

WILLIAM L. SATTERWHITE, and

JAMES M. COCHRAN,

Defendants-Appellants.

Appeal from the United States District

Court for the Eastern District of Texas

ON PETITION FOR REHEARING AND

PETITION FOR REHEARING EN BANC

Before WISDOM, POLITZ and SAM D. JOHNSON,

Circuit Judges.

A-125

PER CURIAM:

( xx ) The Petition for Rehearing is

DENIED and no member of this panel nor

Judge in regular active service on the

Court having requested that the Court be

polled on rehearing en banc, (Rule 35

Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16) the Sugges-

tion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

Signed by Sam D. Johnson,

United States Circuit Judge

A-126

tere 48 8 Pete - .

‘

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 80-1044

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOM WELCH, CHARLES CASHELL,

WILLIAM L. SATTERWHITE, and

JAMES M. COCHRAN,

Defendants-Appellants.

Appeal from the United States District

Court for the Eastern District of Texas

ORDER:

(xx) The motion of appellants, WELCH,

CASHELL, SATTERWHITE and COCHRAN for

stay of the issuance of the mandate

pending petition for writ of certi-

orari is DENIED. See Fifth Circuit

Local Rule 17, as amended January 22,

1979.

Signed by Sam D. Johnson, —

United States Circuit Judge

A-128

‘ .

RPG A Se? 0 e .

;

é 7

. rue .

| RECEIVen |

JANA 4992

Orric Ur ite CLERK

IN THE SUPREME COURT OF THE UNITED STATES] cypress payor

October SL’ ‘GO 62

NO.

TOM WELCH, CHARLES CASHELL,

WILLIAM L. SATTERWHITE AND

JAMES M. COCHRAN,

Petitioners

vs.

UNITED STATES OF AMERICA

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

JAMES M. COCHRAN, respectfully moves the Court for leave

to proceed herein in forma pauperis, in accordance with

the provisions of Title 28, United States Code, Section

1915, and Rule 53 of the rules of this Court. The affidavit

of JAMES M. COCHRAN in support of this motion is hereto

attached.

JAMES M, COCHRAN has previously been granted leave to

proceed in forma pauperis in this case in proceeding with

his appeal from the United States District Court for the

Fastern District of Texas to the United States Court of

Appeals for the Fifth Circuit.

Presented herewich is a petition for writ of certiorari

of moving party.

paTED this 2¢/_ day of December, 1981.

Respectfully submitted,

PATTON & NIX

405 East Magrill Street

15630000

ATTORNEYS FOR JAMES M. COCHRAN

RECEIVED

JANA 1982

Ores. ve tele CLERK

r UH

STATE OF TEXAS 1 SUPREME (HURT ub, al

———

COUNTY OF GREGG I

JAMES M. COCHRAN, being duly sworn, on oath deposes

and says:

1. He is the Petitioner in the above-entitled action

and makes this affidavit in support of his motion for leave

to proceed in forma pauperis herein.

2. Affiant is unable because of his poverty to pay

fees and costs of this case or give security therefor.

3. This is a petition for writ of certiorari from the

final judgment of United States Court of Appeals for the

Fifth Circuit. Affiant believes that he is entitled to

the redress sought in this Court.

DATED this 4“ f/ day of December, 1981.

\ -

i yi ~~¢ ju bod A. fica

jj JAMES M. COCHRAN

SUBSCRIBED AND SWORN TO BEFORE ME this 7% //aay of

Pally Ka nal

Notary owen in an lead

Gregg Cot nty, in a

December, 1981.

— —_——-—- —_»

RECEIVED

81 6062 JANA 1982

Orrice Ue IE CLERK

| SUPREME Chua US

eg nee — 7~-» 4

BEFORE ME, the undersigned auth rity, on this

THE STATE OF TEXAS |

COUNTY OF GREGG x

day personally appeared LYNN S. PATTON, who, being first

duly sworn by me, on his oath stated:

"My name is LYNN S. PATTON. IL om the Attorney

of Record for JAMES M,. COCHRAN. I have placed in the United

States Mail, with lst clas postage prepaid, this the 31st

day of December, 1981 Petition for Writ of Certiorari to

the United States of Appeals for the Fifth Circuit and

Motion for Leave to Proceed in Forma Pauperis to the Clerk

of the Supreme Court of the United States, the Solicitor

General and the other attorneys in this case.

I further state that I am licensed to practice

before the Supreme Court of the United States.”

SIGNED this the 3lst day of December, 1981.4 ,

s » /

() ‘4 « — > 7

ee ~ 6 /

Le he, d .

: £ - aa . ”,

S ———— | ha

LYNN SS PATTON

~ —

SUBSCRIBED AND SWORN TO BEFORE ME by the said

LYNN S. PATTON, this the 3lst day of December, 1981.

{ WY, }

Rbk AANGakse &

Notary Pubjic in and/for

Gregg County, Texas ‘

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