852 F.2d 1045, *; 1988 U.S. App. LEXIS 10052, **
United States of America, Appellee, v. Raymond H. Flynn,
Appellant
No. 87-1505
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
852 F.2d 1045; 1988 U.S. App. LEXIS 10052
January 14, 1988, Submitted
July 27, 1988,
Filed
PRIOR HISTORY:
[**1] Appeal from the United States District Court
for the Eastern District of Missouri.
CORE TERMS:
murder, bombing, dynamite, bomb, conspiracy, indictment, furtherance,
explosive, conversation, restaurant, drove, river, kill, pattern of racketeering
activity, interstate transportation, killing, interstate commerce, sufficient
evidence, participated, retaliate, electronic surveillance, shooting,
retaliation, driven, conspiracy to murder, reasonable doubt, admissible,
predicate, favorable, commit
COUNSEL: Counsel who presented argument on behalf
of the Appellant was Lawrence J. Fleming, St. Louis, Missouri.
Counsel
who presented argument on behalf of the Appellee was Frederick R. Buckles, AUSA,
St. Louis, Missouri.
JUDGES:
Heaney, Circuit Judge, Bright, Senior Circuit Judge, and Wollman, Circuit Judge.
Wollman, Circuit Judge, concurring in part, dissenting in part.
OPINIONBY: BRIGHT
OPINION: [*1046]
BRIGHT, Senior Circuit Judge.
The United States, in a three-count
indictment, charged appellant Raymond H. Flynn with violating and conspiring to
violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. §§ 1962(c) and (d), (counts I and II), and with interstate
transportation of an explosive in violation of 18
U.S.C. § 844(d) (count III). According to the indictment, Flynn participated
in an organization which engaged in a series of violent crimes in an attempt to
obtain and maintain control of various labor unions and to retaliate against
leaders of rival groups, organizations and families for acts committed against
the enterprise.
The United States District Court n1 for the Eastern
District of Missouri, upon a trial by jury, convicted Flynn of the crimes
charged against him.
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n1 The Honorable John F.
Nangle, Chief Judge, United States District Court for the Eastern District of
Missouri.
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Flynn raises a number of
issues on appeal from the convictions, including the admissibility of hearsay
testimony and recorded conversations pertaining to crimes in which Flynn was not
an active participant, sufficiency of the evidence for conviction on all counts,
the propriety of certain comments made by the Government in its closing
arguments and the refusal of the district court to suppress the fruits of the
Government's electronic surveillance. We [*1047] affirm the RICO
convictions, counts I and II, but reverse count III, transportation of the
explosive for insufficiency of the Government's evidence.
I.
BACKGROUND n2
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n2 The underlying facts in this case are
essentially the same as those presented in United
States v. Leisure, 844 F.2d 1347 (8th Cir.1988).
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As required for appellate review, we state the facts in the light most
favorable to the jury's verdict. United
States v. Minor, 815 F.2d 472, 473 (8th Cir. 1986).
A. Spica
Bombing
On October 4, 1979, appellant Flynn became the business manager
of Local 42 of the Laborers' International Union in St. Louis,
Missouri. Shortly thereafter, Anthony Giordano, considered by many
[**3] to head the Italian organized crime faction in St. Louis,
called a meeting with Flynn and others to discuss his plans for including an
Italian influence in Local 42. To include the Italian influence in Local 42,
Anthony Giordano placed an associate, John Paul Spica, into that Local. The
Italians at that time did control a different laborers' local,
Local 53.
Spica bragged to Paul Leisure of his intent to kill Flynn and
take over Local 42. Paul Leisure and his brother, Anthony Leisure, were, at the
time, attempting to take control of the third laborers' Local
in St. Louis, Local 110, and thus were concerned that a successful takeover of
control of Local 42 by the Italians next would lead to an attempt by the
Italians to control Local 110. Paul Leisure, therefore, in an effort to forge an
alliance with Flynn and to more effectively thwart the Italians' takeover
attempts of Local 42, told Flynn of Spica's intention to kill Flynn.
Paul Leisure thereupon began a campaign to learn Spica's daily habits
and to gain his trust and confidence. His brother, Anthony Leisure, obtained a
car similar to that driven by Spica on which he and Flynn could practice wiring
a bomb to the car. Flynn and Anthony [**4] Leisure made several
attempts to place the bomb on Spica's car. Finally, on the night of November
7-8, 1979, they succeeded. On the morning of November 8, 1979, the bomb exploded
as Spica sat in his car, killing him.
B. Michaels, Sr. Bombing
In the meantime, beginning in the late 1970s, Paul and Anthony Leisure
encountered difficulties in securing and maintaining control of Local 110. Prior
to his death in June of 1977, Ray Massaud, Local 110's business manager, reached
an agreement with Anthony Leisure that upon Massaud's death, his son, John
Massaud, would become Local 110's business manager, but that John would act only
as a figurehead. Ray Massaud then created a separate but equal position of
assistant business manager for Anthony Leisure with the understanding that
Leisure could hire and fire organizers and business agents for the Local.
Anthony Leisure hired Ronald Joseph Broderick, a Leisure associate, to assist
Anthony in securing control of the union. Broderick served as a union organizer.
Over the next year, the Leisures discovered that the agreement did not
work as planned. John Massaud hired relatives of both Giordano and James
Michaels, Sr., the reputed head of the Syrian [**5] organized crime
faction in St. Louis, without consulting Anthony Leisure. At this time, the
Leisures discussed the possibility of murdering John Massaud, but decided
against it for fear of starting a war with the Italians.
When the
Leisures learned that Mike Trupiano, a nephew of Anthony Giordano and president
of Local 110, and John Massaud planned to fire Broderick because Broderick was
neither Italian nor Syrian, the Leisures realized their failure in exercising
complete control over the Local. In an attempt to solidify their power base in
Local 110, the Leisure group decided that someone had to be killed. The group
considered killing Trupiano but decided against it because they feared it would
anger some Italians. The group settled on murdering James Michaels, Sr. Not only
would his death avenge the murder of [*1048] Richard Leisure in the
early 1960s, n3 but it would also make possible the firing of Francis Michaels,
Michaels, Sr.'s brother, and James Michaels, Michaels, Sr.'s grandson, from the
Local, thus leaving two vacancies for Anthony Leisure to fill. Thus, in their
view, Paul Leisure would become the head of the Syrian organized crime faction
in St. Louis.
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n3 In the early 1960s, Richard Leisure,
David Leisure's brother and Paul and Anthony Leisure's cousin, was shot and
killed by Norm Peters, an associate of Michaels, Sr. Michaels, Sr. used his
influence to help Peters escape retribution for the murder. See the relation of
facts in United States v. Leisure, slip op. at 5.
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[**6]
Paul and Anthony Leisure then planned the bombing of
Michaels, Sr. Leisure associate Fred Prater constructed a bomb using a remote
control device provided by an associate, Charles Loewe. Another associate, John
Ramo, installed safety devices on the bomb. Anthony Leisure supplied the
dynamite. They stored the bomb at L.N.&P., a towing company in St. Louis
owned by the Leisures and Fred Prater.
Various members of the Leisure
group surveilled Michaels, Sr., learning his habits and routine. Anthony and
David Leisure and Broderick watched Michaels, Sr. on a southern Illinois golf
course and David Leisure used the apartment of a friend to observe Michaels,
Sr.'s movements at a local church where Michaels, Sr. often ate lunch. Anthony
and David Leisure practiced placing the bomb on the underside of a stolen
vehicle identical to that driven by Michaels, Sr.
On September 17, 1980,
Anthony and David Leisure, Ramo and Broderick drove in a van to the place where
Michaels, Sr. was having lunch and David Leisure placed the bomb on the
underside of Michaels, Sr.'s car. Paul Leisure instructed Charles Loewe to act
as a spotter in the area and to radio in any problems. As Michaels, Sr. drove
down [**7] Interstate 55 in South St. Louis County, the bomb
exploded, killing Michaels, Sr. in the blast. Eventually, Michaels, Sr.'s
relatives were driven from Local 110.
The Government presented no
evidence implicating Flynn in the Michaels, Sr. bombing.
C. The
Fredericktown Surveillance
On August 11, 1981, less than one year after
the death of Michaels, Sr., Paul Leisure sustained serious injury, losing the
bottom portion of both legs, when a bomb exploded in his car in front of his
residence in St. Louis. After learning from John Vitale, who succeeded Giordano
as head of the Italian faction of organized crime in St. Louis, that Paul
Leisure's bombing resulted from "a family thing," the Leisure group concluded
that the Michaels family caused Paul Leisure's injuries. Learning that local law
enforcement officials focused their investigation on the Michaels family, the
Leisure group was reinforced in this conclusion.
On one occasion, in the
few weeks following the bombing, Flynn, Anthony Leisure and Joe Broderick drove
to the Michaels family farm in Fredericktown, Missouri, intending to kill those
present. No one was at the house, but Flynn, Anthony Leisure and Broderick
discussed ways to [**8] kill persons who might use the house. Flynn
suggested dangling dynamite down the chimney and blowing up everyone present.
D. The Edge Shooting
In another attempt to avenge the bombing of
Paul Leisure, Anthony and David Leisure shot John Charles Michaels, grandson of
Michaels, Sr., at The Edge Restaurant in St. Louis. Prior to the shooting,
Anthony Leisure, Joe Broderick and Fred Prater watched the restaurant and
prepared an abandoned building next to the restaurant to facilitate the shooting
and getaway. Charles Loewe drove Anthony and David Leisure to the site, where
the Leisures fired on Michaels and a friend, one Dennis Day. The Leisures then
fled in a van driven by Joe Broderick.
The Government produced no
evidence implicating Flynn in the shooting.
[*1049] E. Plans
to Murder Bob Peters
The Leisure group believed that Bob Peters, who
worked at Pepsi-Cola, was a member of the Michaels group. They devised a plan
whereby Anthony Leisure would shoot Peters as he left work one afternoon. They
abandoned the plan when a workman appeared who may have seen Anthony Leisure and
Loewe.
F. The Faheen Bombing
The Leisures also suspected that
George "Sonny" Faheen, a nephew of Michaels, Sr., had participated
[**9] in Paul Leisure's bombing. David Leisure, Charles Loewe and
other Leisure associates, including Michael Kornhardt, Frank Termine and Malcolm
"Mike" Flinn, n4 appellant's brother, watched Faheen, learning his daily habits,
where he lived and where he worked. They obtained a car similar to that driven
by Faheen to use as a practice vehicle for placing a car bomb.
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n4 We note a difference in spelling of the given name Flynn or Flinn.
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On October 15, 1981, David Leisure and John Ramo met
Anthony Leisure, Broderick and Flynn at a local fast food restaurant. Flynn
opened the trunk of his car revealing dynamite. Flynn commented that he obtained
it "from across the river from Ski," an apparent reference to an associate,
Stanley Kowalski, who lived in Illinois. They placed the dynamite in David
Leisure's car. During the course of their discussions, Flynn said that he did
not think the Mansion House parking garage, where Faheen parked his car, would
serve as a good site to place a bomb on Faheen's car because the area was too
populated.
The following day, David Leisure and Michael Kornhardt picked
up a bomb from Charles Loewe and attached the bomb to Faheen's car in the
Mansion House garage. [**10] The bomb exploded when Faheen started
his car. The explosion trapped Faheen in the car and he burned to death. This
murder underlays the interstate transportation of explosives charge.
G.
The Kornhardt Murder
Authorities arrested Michael Kornhardt and charged
him with Faheen's murder. Fred Prater obtained Kornhardt's release on bail using
Prater's real properties as security for the bail bond. Because various members
of the Leisure group, however, believed that Kornhardt might cooperate with the
authorities, the group planned to kill Kornhardt. Flynn expressed concern about
Kornhardt talking to law enforcement people and worried that Kornhardt might
implicate Malcolm Flinn in the Faheen killing. David Leisure, at Paul Leisure's
direction, enlisted the aid of Robert Carbaugh and Steven Wougaman to murder
Kornhardt. On July 31, 1982, Carbaugh and Wougaman lured Kornhardt into a rural
area of St. Charles County, Missouri, on the pretext of committing a burglary.
Carbaugh shot Kornhardt twice in the head. Carbaugh and Wougaman thereupon
became members of Local 42.
The Government presented no evidence
implicating Flynn in Kornhardt's murder.
H. Indictments and Trial
The following month, [**11] in August of 1982, Fred Prater
received a grant of immunity and became a Government witness. On April 13, 1983,
the grand jury indicted Paul, Anthony and David Leisure, Broderick, Ramo,
Carbaugh, Loewe and Wougaman on RICO and other charges. Ramo, Broderick and
Carbaugh eventually pled guilty. n5 In April of 1985, a jury convicted Paul and
David Leisure and Wougaman on all counts against them. The jury, however,
convicted Anthony Leisure and Loewe only of the substantive RICO and RICO
conspiracy counts against them. This court affirmed the convictions on appeal
except for two of the counts against Wougaman. United
States v. Leisure, 844 F.2d 1347 (8th Cir. 1988).
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n5 The Government initially tried Carbaugh with the Leisures, Wougaman
and Loewe but the jury could not reach a verdict on the charges against him. On
the eve of the date set for retrial, Carbaugh entered a guilty plea.
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[*1050] The indictment against Flynn, filed July 24,
1986, after the Leisure convictions, contains three counts. Count I charges a
RICO violation, 18
U.S.C. § 1962, consisting of three acts of racketeering activity: (1)
conspiracy to murder, and the murder [**12] of, John Paul Spica; (2)
conspiracy to murder James Anthony Michaels III and others; and (3) conspiracy
to murder, and the murder of, George "Sonny" Faheen.
Count II charges a
conspiracy to violate the RICO statute, 18
U.S.C. § 1962(d), and consists of six overt acts in furtherance of the
conspiracy:
OVERT ACTS
In furtherance of this conspiracy and to effect the objects
thereof, the following overt acts were committed:
1. Between October
4, 1979 and November 7, 1979, the exact date being unknown to the Grand Jury,
RAYMOND H. FLYNN and others met and had a discussion concerning a threat made
by John Paul Spica to kill RAYMOND H. FLYNN in an effort to take over
leadership of Laborers' Local 42 of the
Laborers' International Union.
2. Between October 4,
1979 and November 7, 1979, the exact date being unknown to the Grand Jury, in
St. Louis, Missouri, RAYMOND H. FLYNN and others obtained and examined a 1977
Cadillac automobile similar to the one then being used by John Paul Spica.
3. On or about November 7, 1979, in St. Louis County, Missouri,
RAYMOND H. FLYNN attached an explosive device to a 1977 Cadillac automobile
then being used by John Paul Spica.
4. Between August 11, 1981
[**13] and September 11, 1981 RAYMOND H. FLYNN and others drove in
an automobile to the vicinity of Fredericktown, Missouri.
5. On or
about October 15, 1981 RAYMOND H. FLYNN and others met and had a conversation
on the parking lot of a restaurant in St. Louis, Missouri.
6. On or
about October 15, 1981, on the parking lot of a restaurant in St. Louis,
Missouri, RAYMOND H. FLYNN delivered to others a quantity of
explosives.
Count III charges Flynn with
interstate transportation and receipt of dynamite, with the knowledge and intent
that it would be used to kill or injure George "Sonny" Faheen in violation of 18
U.S.C. § 844(d).
As we have observed, the federal jury returned a
guilty verdict against Flynn on all counts. The district judge sentenced him to
twenty years in prison on both counts I and II and to forty-five years in prison
on count III, all to run concurrently.
We address Flynn's contentions on
appeal.
II. ELECTRONIC SURVEILLANCE
Flynn challenges the
admission into evidence of tape-recorded conversations obtained through
electronic surveillance. Flynn incorporated by reference into his brief the
argument advanced by the appellants in United States v. Leisure. The
[**14] Leisure panel upheld the validity of the wiretaps in
a comprehensive and well-reasoned opinion. We are bound by the prior panel
opinion and thus affirm the district court's denial of Flynn's motion to
suppress evidence obtained from the electronic surveillance of the L.N.&P.
offices and of Paul Leisure's home.
III. RICO CHARGE
It shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or indirectly, in the
conduct of such enterprise's affairs through a pattern of racketeering
activity * * *.
18
U.S.C. § 1962(c). An enterprise includes, inter alia, "any * * *
group of individuals associated in fact although not a legal entity." 18
U.S.C. § 1961(4). The pattern of racketeering activity "requires at least
two acts of racketeering activity", 18
U.S.C. § 1961(5), as defined by the statute.
[*1051] A.
Sufficiency of the Evidence
Flynn argues that his motion for judgment of
acquittal should have been granted by the district court because the evidence
against him on the RICO counts did not support the jury's verdict.
In reviewing a denial of a motion [**15] for judgment
of acquittal "we must view the evidence in the light most favorable to the
Government." United
States v. Springer, 831 F.2d 781, 783 (8th Cir. 1987), cert.
denied, 485
U. S. 938, 108 S. Ct. 1117, 99 L. Ed. 2d 277 (1988) (citations omitted).
We also must give the Government "the benefit of all reasonable inferences
that may logically be drawn from the evidence." Id.
at 783-84 (citations omitted). "A motion for acquittal should be granted
only where 'the evidence, viewed in the light most favorable to the
Government, is such that a reasonably minded jury must have a
reasonable doubt as to the existence of any of the essential elements of the
crime charged.'" United
States v. White, 562 F.2d 587, 589 (8th Cir. 1977) (per curiam)
(citations omitted; emphasis in original), quoted in United
States v. DeLuna, 763 F.2d 897, 924 (8th Cir.), cert.
denied, 474
U.S. 980, 106 S. Ct. 382, 88 L. Ed. 2d 336 (1985).
United
States v. Adkins, 842 F.2d 210, 212 (8th Cir. 1988).
Flynn
first argues that the Government did not present sufficient evidence at trial to
prove the existence of an enterprise. To ensure that RICO does more than subject
ordinary criminals to heightened punishment, "an 'enterprise' [**16]
must exhibit three basic characteristics: (1) a common or shared purpose; (2)
some continuity of structure and personnel; and (3) an ascertainable structure
distinct from that inherent in a pattern of racketeering. United
States v. Bledsoe, 674 F.2d at 665." United
States v. Lemm, 680 F.2d 1193, 1198 (8th Cir. 1982), cert.
denied, 459
U.S. 1110, 74 L. Ed. 2d 960, 103 S. Ct. 739 (1983).
In United
States v. Leisure, the panel evaluated substantially the same evidence of
the enterprise in light of a challenge by the appellants to the sufficiency of
the evidence with regard to the existence of a RICO enterprise. The
Leisure panel found sufficient evidence of the enterprise. We agree
with the panel on this issue and quote extensively from that opinion.
The Leisure group acted out of a common purpose to dominate local
labor unions, profit economically from this domination, and murder opponents
of their efforts to the extent necessary. The structure and personnel of the
Leisure group was continuous and consistent throughout the entire period of
racketeering activity. Paul Leisure directed and coordinated the group, except
during the period of recovery from his own bombing injuries, when Anthony
Leisure [**17] stood in his place. Paul Leisure, Anthony Leisure,
David Leisure, John Ramo, Joe Broderick, Fred Prater, and Charles Loewe were
members of the Leisure group during the entire period of the racketeering
events. Each member participated in nearly all of the criminal acts. Finally,
the Leisure group clearly had an ascertainable structure distinct from that
inherent in the conduct of this pattern of racketeering activity, that is, the
sequence of murders and attempted murders. This structure is found in the
family and social relationships between the members of the group, and their
concerted attempt to gain control of the local unions, which can be viewed in
complete isolation from the group's pattern of racketeering activity. Of
course, the murders and attempted murders in themselves also shed light on
this structure. As the Supreme Court has recognized, "the proof used to
establish these separate elements may in particular cases coalesce." United
States v. Turkette, 452 U.S. [576,] 583 [(1981)]. Indeed, the
evidence in this case seems to fall squarely within an example of a RICO
enterprise previously given by this court: "Th[e] distinct structure [of a
RICO enterprise] might be demonstrated [**18] by proof that . . .
it has an organizational pattern or system [*1052] of authority
beyond what was necessary to perpetrate the predicate crimes. The command
system of a Mafia family is an example of this type of structure." United
States v. Bledsoe, 674 F.2d at 665.
In sum, this is not a
case of "a sporadic and temporary criminal alliance to commit one of the
enumerated RICO crimes." United
States v. Lemm, 680 F.2d at 1201. We conclude, therefore, that the
evidence adequately supported the jury finding that the Leisure group was a
RICO enterprise.
United States v. Leisure,
slip op. at 31-32.
Flynn further argues that even if the Government did
present sufficient evidence to prove the existence of a RICO enterprise, this
evidence did not prove his participation in the enterprise. We disagree.
The indictment in this case broadly defined the purposes of the
enterprise:
to enrich its members financially; to murder leaders and
members of rival groups, organizations, and families; to retaliate against
leaders and members of rival groups, organizations, and families for acts
committed against associates of the enterprise; to avoid, discover and
obstruct investigations and prosecutions [**19] of associates and
activities of the enterprise by law enforcement officials.
That Flynn shared these purposes with the other members of the
enterprise is disclosed from the evidence. He joined with the enterprise to
preserve his power within the labor unions and conspired with others to commit
acts aimed at preserving the integrity of the enterprise. He placed the bomb on
Spica's car and engaged in acts of retaliation for the bombing of Paul Leisure.
The only activities in which Flynn did not participate were those surrounding
the Michaels' murder, including discussions of killing Mike Trupiano and John
Massaud. When Flynn left his position in Local 42 due to a pending lawsuit, n6
he placed Paul Leisure in the Local so that Flynn could continue to influence
the Local's policies. Thus, Flynn's participation in the enterprise amounted to
more than the mere predicate acts with which he was charged; he actively
participated in the Leisure enterprise.
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n6 The record is
not clear precisely why Flynn left Local 42. The Government in its brief states
only that he left because of a pending lawsuit.
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Flynn also
argues that the evidence failed to show that his activities promoted his
economic [**20] interests in the enterprise. For purposes of RICO,
an enterprise must be directed toward an economic goal. United
States v. Anderson, 626 F.2d 1358, 1372 (8th Cir. 1980), cert.
denied, 450
U.S. 912, 67 L. Ed. 2d 336, 101 S. Ct. 1351 (1981). See also United
States v. Ivic, 700 F.2d 51, 59-65 (2d Cir. 1983). The members of the
Leisure enterprise directed their activities toward controlling St. Louis' labor
unions. That goal served to promote an economic purpose.
We conclude
that the evidence presented against Flynn on counts I and II, the substantive
RICO and RICO conspiracy counts, is sufficient to require that we sustain
Flynn's convictions on those counts.
B. Co-Conspirator's Statements
At trial, the Government placed into evidence conversations intercepted
through electronic surveillance of the offices at L.N.&P. and of Paul
Leisure's home, as well as the testimony of Leisure associates Prater, Broderick
and Ramo. The recorded conversations and the testimony of these witnesses
included evidence of the three predicate acts with which Flynn was charged,
i.e., the Spica bombing, the conspiracy to murder Michaels III and
others and the Faheen murder, and, in addition, evidence of the murder of
Michaels, [**21] Sr., including discussions of considering whether
or not to murder John Massaud and Mike Trupiano. The Government also presented
evidence of acts of retaliation for the bombing of Paul Leisure, including the
shooting at The Edge, the Kornhardt murder and plans to murder Bob Peters. The
indictment does not allege that Flynn participated in those latter acts and the
Government presented no evidence that he did, in fact, participate in them.
[*1053] Flynn objects to the admission of evidence of crimes
in which he did not participate, arguing that the evidence is inadmissible
hearsay. An out-of-court statement is not hearsay and is admissible if, on the
basis of independent evidence, the court is convinced that it is more likely
than not that the statement was made during the course and in furtherance of a
conspiracy to which the declarant and the defendant were parties. Fed. R. Evid.
801 (d)(2)(E); United
States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). The district
judge, following the strictures of United States v. Bell, n7 found that
the Government produced sufficient evidence of a conspiracy to support the
admission of those statements.
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n7 Under United
States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978), the court may
conditionally admit the hearsay statements presented by the Government. At the
close of the Government's case, the court must then explicitly rule on the
admissibility of the statements, i.e., that they were made by a
co-conspirator during the course and in furtherance of the conspiracy.
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Flynn challenges the admissibility of
evidence of crimes in which he did not participate, asserting that they are not
the crimes of any conspiracy of which he was shown to be a member and were not
made in furtherance of any conspiracy alleged in the indictment or of which
Flynn was shown to be a member.
1. Admissibility of Co-Conspirator's
Statements Relating to Revenge for the Bombing of Paul Leisure
The
Government proffered evidence of Flynn's participation in the attempts to
retaliate against the Michaels family for the Paul Leisure bombing. The evidence
links Flynn to these acts and, thus, the statements of those with whom he
conspired are admissible against him. Fed. R. Evid. 801(d)(2)(E). This is true
even for those acts done in retaliation for Paul Leisure's bombing in which
Flynn did not directly participate, i.e., the shooting at The Edge, the
Kornhardt murder and plans to murder Bob Peters. The evidence sufficiently
establishes that Flynn conspired with the other members of the enterprise to
retaliate for Paul Leisure's bombing. He clearly expressed his intent to do so
when he commented to other members of the group, "something has to be done quick
about this. I have [**23] strong feelings for that guy [Paul
Leisure] in there. And you have to move fast to get the people responsible for
this." Further evidencing Flynn's desire for retaliation is his trip with
Broderick and David Leisure to Fredericktown to find members of the Michaels
family to kill.
Furthermore, this evidence of retaliation for the
Leisure bombing is admissible to prove the enterprise element of the RICO
counts. In order to prove the existence of a RICO enterprise, the Government
must demonstrate (1) a common or shared purpose which animates those associated
with it, (2) that the enterprise functions as a continuing unit and (3) that it
has an ascertainable structure distinct from the pattern of racketeering
activity. United
States v. Bledsoe, 674 F.2d 647, 664-65 (8th Cir.), cert.
denied, 459
U.S. 1040, 103 S. Ct. 456, 74 L. Ed. 2d 608 (1982). To make such proof, the
Government is required to provide detailed evidence of the workings of the
enterprise. The evidence of the attempts to retaliate for Paul Leisure's bombing
provides insight into the purposes of the Leisure enterprise, demonstrating its
consistent structure and the roles of each participant, and was relevant and
admissible.
In United
States v. Finestone, [**24] 816 F.2d 583, 587 (11th Cir.),
cert. denied, 484
U.S. 948, 108 S. Ct. 338, 98 L. Ed. 2d 365 (1987), the Eleventh Circuit held
that in a RICO drug ring prosecution, the district court properly admitted, at a
joint trial of several defendants, evidence of a kidnapping and execution-style
murder in which the defendant Finestone did not participate. The Eleventh
Circuit specifically held that the evidence could be admitted to prove, among
other things, a pattern of racketeering activity and overt acts of the
conspiracy, an element of the RICO conspiracy charge. Id.
This
circuit, in United
States v. Ellison, 793 F.2d 942 (8th Cir.), cert. denied, 479
U.S. 937, 107 S. Ct. 415, 93 L. Ed. 2d 366 [*1054] (1986), made
a similar ruling. There, the district court denied the RICO defendant's motion
in limine to prohibit the government from proving that a white supremacist group
constituted an enterprise by introducing evidence, which included testimony that
group members attempted to blow up a natural gas pipeline, attempted to burn a
Jewish community center, stole jewelry from a pawn shop and used and accumulated
firearms and explosives on group property. The indictment did not charge these
crimes against the defendant. The court stated, "we cannot [**25]
say that the prejudicial aspects of the disputed evidence outweigh its probative
value, and thus we hold that the District Court did not abuse its discretion in
refusing to exclude the Government's evidence establishing that CSA was an
enterprise for RICO purposes." Id.
at 949 [emphasis added].
Flynn also argues, however, that this
evidence should have been excluded because its prejudicial nature outweighs its
probative value. Fed. R. Evid. 403. We review such decisions under the abuse of
discretion standard, Ellison,
793 F.2d at 949. No abuse of discretion is shown by admitting evidence of
those acts of the enterprise aimed at retaliating against the Michaels family
for Paul Leisure's bombing.
2. The Michaels' Murder and Discussion of
Killing Trupiano and Massaud
We are, however, disturbed by the admission
into evidence of the discussions of the possible murder of Mike Trupiano and
John Massaud and the ultimate decision to murder Michaels, Sr., together with
the evidence of Michaels, Sr.'s murder. The Government presented no evidence
linking Flynn to these acts.
The RICO statute has a tremendous potential
for guilt by association. See United
States v. Bledsoe, 674 F.2d [**26] at 664. When the
government introduces every bad act of an enterprise, including those in which
the defendant does not participate, it magnifies the potential for imputing
guilt to a defendant solely on the basis of the company he keeps and Fed. R.
Evid. 403 is implicated.
While the evidence of these acts tended to
prove the enterprise element of the RICO statute, in our view, the district
court erred in admitting this evidence. The evidence of discussions concerning
possibly killing Massaud and Trupiano and of the Michaels' murder, in light of
the overwhelming evidence presented at trial, was not necessary to prove the
existence of the enterprise. The evidence obviously carried a prejudicial
impact, yet in no way did it connect Flynn to the enterprise. Its prejudicial
value outweighed its probative value. Fed. R. Evid. 403.
Nevertheless,
under the circumstances, the district court's error does not warrant a new
trial. The court's instructions to the jury made very clear that in order to
convict Flynn on count I, the substantive RICO count, it must find beyond a
reasonable doubt that Flynn engaged in at least two of the three predicate acts
charged in the indictment. Similarly, [**27] the court
instructed the jury that in order to convict Flynn of count II, conspiracy to
violate RICO, the jury must find that Flynn conspired to commit two of the three
acts of racketeering activities alleged in count I of the indictment. The jury
being thus properly instructed, we have no reason to believe that it convicted
Flynn based on other crimes in which he did not participate.
In
addition, the testimony would have been admissible if Flynn had been tried with
the rest of the Leisure group, provided the appropriate instructions had been
given, as they were here. Finally, the evidence of the murder of Michaels, Sr.
and the discussions of murdering Massaud and Trupiano was no more inflammatory
than the evidence of the crimes in which Flynn participated. Thus, the actual
prejudice suffered by Flynn due to the erroneously admitted evidence is
insufficient to require a new and lengthy trial.
3. The "In Furtherance"
Requirement of Conspirator's Statements
Flynn also argues that the
co-conspirators' statements were not made in furtherance [*1055] of
the conspiracy as required by Fed. R. Evid. 801(d)(2)(E). This court construes
the "in furtherance" requirement broadly. United
States v. Massa, [**28] 740 F.2d 629, 638 (8th Cir. 1984),
cert. denied, 471
U.S. 1115, 86 L. Ed. 2d 258, 105 S. Ct. 2357 (1985). We have carefully
reviewed the challenged evidence and find no indication that the statements were
made other than in furtherance of the conspiracy. Even those statements which
Flynn deems inadmissible because they discuss past events were made to "pull the
troops together" and provide renewed fervor among the members of the conspiracy.
See, United States v. Leisure slip op. at 27, discussing the same
argument in light of essentially the same evidence.
IV. CLOSING
ARGUMENT
Flynn complains of two lines of closing argument made by the
Government. Flynn argued that, of some 750 hours of tape-recorded conversations
intercepted by the Government, only two conversations contained Flynn's voice
and those two were totally unrelated to the crimes demonstrated by the evidence.
In rebuttal, the Government argued that the number of times a person's voice
appears on tape is not determinative of guilt, pointing out, over Flynn's
objection, that during the trial Anthony Leisure's voice appeared only twice in
tape-recorded conversations and Anthony Leisure "is in there up to his ears."
Flynn contends that the Government's comments [**29] were without
any support in the record.
In its rebuttal argument, the Government
discussed witness Donna Lansing's testimony at trial. Lansing was brought
face-to-face with Flynn and asked by Flynn's attorney if she could identify
Flynn as a man she saw at the site of the Spica bombing two nights before Spica
was killed. The Government stated, "her voice quivered, she had to ask [Flynn's
attorney] to repeat the question." Flynn contends that the Government improperly
characterized Lansing's voice as quivering when it did not, in fact, quiver.
Flynn argues that, given the weak case against him, the Government's
improper closing arguments warrant reversal of his convictions.
The
trial court has broad discretion in controlling closing arguments. United
States v. Lewis, 759 F.2d 1316, 1350 (8th Cir.), cert. denied,
474
U.S. 994, 106 S. Ct. 406, 88 L. Ed. 2d 357 (1985); United
States v. Bohr, 581 F.2d 1294, 1301 (8th Cir.), cert. denied,
439
U.S. 958, 58 L. Ed. 2d 351, 99 S. Ct. 361 (1978). Absent a showing of abuse
of discretion, this court will not reverse. United
States v. Bohr, 581 F.2d at 1301.
We review the prosecutor's
statements in the entire context of the trial to determine whether the argument
complained of was so offensive [**30] as to deprive Flynn of a fair
trial. United
States v. Lewis, 759 F.2d at 1350; United
States v. Bohr, 581 F.2d at 1301.
The district court did not
commit prejudicial error in permitting these statements by the Government. n8 In
the context of the entire trial, we cannot say that the statements to which
Flynn objects were so offensive as to deprive Flynn of a fair trial.
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- -
n8 We note that Flynn did not object to the statements with regard
to Lansing's testimony. In view of our holding that the argument did not violate
Flynn's right to a fair trial, we need not address Flynn's failure to preserve
the issue for appeal.
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Footnotes- - - - - - - - - - - - - - - - -
The Government did not
prejudice Flynn when it compared the number of times Flynn's voice appears on
tape with the number of times Anthony Leisure's voice appears on tape. The
Government's argument is supported by the record before us; Anthony Leisure's
voice appears on just two tapes, exhibits 111 and 112. Furthermore, the
Government's remarks were prompted by Flynn's argument and, thus, do not
comprise reversible error. United
States v. Lee, 743 F.2d 1240, 1253 (8th Cir. 1984).
Flynn's
assertion that he was prejudiced by the Government's characterization
[**31] of witness Lansing's voice as quivering is also without
merit. Because we have before us only a written transcript, we cannot determine
if Lansing's voice quivered or not. The jury, however, heard [*1056]
Lansing's testimony and was in the best position to evaluate her demeanor.
Because the jury could accept or reject the Government's characterization of
Lansing's testimony based on what it observed at trial, we do not believe that
the Government's characterization of her voice as quivering, even if wrong, so
prejudiced Flynn as to warrant reversal of his RICO convictions. Contrary to
Flynn's assertion, the case against him on the RICO charges was not weak.
Further, the jurors heard Lansing's testimony and were in a position to accept
or reject the Government's characterization of her testimony.
V. COUNT
III -- INTERSTATE TRANSPORTATION OF DYNAMITE
Flynn argues that the
Government presented insufficient evidence on count III, transportation and
receipt of dynamite in interstate commerce in violation of 18
U.S.C. § 844, to support the jury's verdict of guilt. We agree.
At
trial, Broderick testified that on the day before the Faheen bombing he drove
Anthony Leisure to the White Castle restaurant [**32] at Vandeventer
and Chouteau Streets in St. Louis, Missouri, intending to meet Flynn. While they
were sitting in Broderick's car on the parking lot, Flynn arrived. Flynn parked
his car, walked over to Broderick's car, joined Broderick and Leisure in the
car, and announced, "I got that stuff from Ski across the river." Flynn further
commented, "the guy said I got ten sticks and we can get as much as we want. He
told me there is no limit." As they sat in Broderick's car waiting for David
Leisure to arrive, Flynn expressed his concern that the Mansion House was not a
good location to place the bomb on Faheen's car because of its location in a
busy and populated area.
Thereafter, David Leisure arrived with Ramo and
pulled his car next to Flynn's car. Anthony Leisure and Flynn joined David
Leisure outside the cars. Anthony, David and Flynn walked over to the two cars,
opened the trunks and, according to Broderick who was still in his car, took a
sack or burlap bag out of Flynn's car and placed the container in David
Leisure's car. The group then split up.
Ramo testified similarly. He
stated that he and David Leisure drove to the White Castle restaurant on the day
before the Faheen bombing. [**33] When they arrived, Flynn, Anthony
Leisure and Broderick were present. After parking his car, David Leisure went
over to the others and spoke to them, returned to his vehicle and moved it next
to Flynn's car. Flynn and David Leisure opened the trunks of their respective
cars and transferred a shopping bag and a gym bag from Flynn's car to David
Leisure's car. Ramo, who was standing by the cars while the transfer took place,
saw dynamite in the shopping bag.
We agree that sufficient evidence
exists to demonstrate that Flynn probably provided the dynamite for the Faheen
bombing. n9 However, the prosecution failed to provide any substantial evidence
showing that the dynamite travelled in interstate commerce. Title 18
U.S.C. § 844(d) prohibits transportation and receipt in interstate
commerce of any explosive with knowledge or intent that it will be used to
kill, injure or intimidate any individual. The interstate nexus is an element of
a section 844(d) crime. See United
States v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986), cert.
denied, 479
U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987) and United
States v. Carlson, 561 F.2d 105, 108 (1st Cir.), cert. denied,
434
U.S. 973, 54 L. Ed. 2d 464, 98 S. Ct. 529 (1977).
- - - - - -
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n9
Flynn attacks [**34] this evidence on several grounds. He argues
that the evidence is insufficient because (1) Broderick and Ramo do not agree on
whether it was a burlap bag or a gym bag that was transferred between cars, (2)
Broderick and Ramo made prior inconsistent statements with regard to this
evidence before the Flynn trial, (3) Flynn presented three eyewitnesses placing
him at home at the time the alleged transfer took place and (4) two eyewitnesses
saw dynamite in the trunk of Broderick's car a week before the Faheen bombing.
In light of our ruling on insufficiency of evidence, we do not specifically
address these contentions.
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Footnotes- - - - - - - - - - - - - - - - -
The only evidence presented
by the Government to prove that the dynamite Flynn provided for the Faheen
bombing had travelled in interstate commerce is [*1057] found in
Broderick's testimony. On direct examination, he testified that Flynn said he
obtained the dynamite from "Ski across the river." On cross-examination,
Broderick testified that Flynn said, "I got the stuff [dynamite] from across the
river from Ski." Ski was identified as Stanley Kowalski who lived in Belleville,
Illinois, across the Mississippi River from St. Louis.
The Government
argues that it is a reasonable inference [**35] from this evidence
that Ski carried explosives from Illinois to Missouri. We do not agree. While it
may be a reasonable inference that Flynn obtained the dynamite from Ski who
lived in Illinois, no testimony links Ski to obtaining the dynamite across the
river in Illinois or a state other than Missouri. The Government presented no
evidence of the place of origin of the explosive. Under these circumstances,
where the Government failed in its proof of interstate transportation of the
dynamite, the conviction rests only on surmise or conjecture and it cannot
stand. The evidence presented must be deemed so insufficient that a reasonably
minded jury must have had a reasonable doubt as to the existence of an essential
element of the crime. See United
States v. Adkins, 842 F.2d 210, 212 (8th Cir. 1988).
VI.
CONCLUSION
In accordance with the foregoing, we affirm Flynn's RICO
convictions, counts I and II, and reverse his conviction and vacate his sentence
on count III.
CONCURBY:
WOLLMAN (In Part)
DISSENTBY:
WOLLMAN (In Part)
DISSENT:
WOLLMAN, Circuit Judge, concurring in part, dissenting in part.
I concur
in Parts II, III, and IV of the majority opinion.
I respectfully dissent
from Part V of the majority opinion. [**36] I would hold that the
evidence was sufficient to convict Flynn of interstate transportation of
dynamite in violation of 18
U.S.C. § 844(d). Once it accepted as true Broderick's testimony that Flynn
had obtained the dynamite from "Ski across the river," and "from across the
river from Ski," the jury could reasonably find that the dynamite had been moved
in interstate commerce. Our task is to view the evidence in the light most
favorable to the verdict, giving the government the benefit of all reasonable
inferences. United
States v. Long Elk, 805 F.2d 826, 829 (8th Cir. 1986). I cannot agree
with the majority that a reasonably minded jury must have been left with a
reasonable doubt regarding the interstate transportation of the dynamite.
Cf. United
States v. Minor, 815 F.2d 472 (8th Cir. 1986).