decided as amended january 27 1983.: December 15, 1982.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Newark) (D.C. Crim. Nos. 81-00287-01/14 & 81-00287-16/18).
Weis, Becker and Van Dusen, Circuit Judges.
VAN DUSEN, Senior Circuit Judge.
In November of 1981 a jury convicted all 17 defendants of numerous violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (1976 & Supp. IV 1980). In this appeal, defendants challenge their convictions and claim that the Government drafted and prosecuted the indictment in a manner calculated to "chill" their First Amendment rights. They also contend that the district court erred in failing to question each prospective juror concerning his attitude toward Black Muslims and brutal murders of law enforcement officers, in failing to instruct the jury that the defendants' race and religion were irrelevant and impermissible factors to consider during jury deliberations, and in failing to compel each of their lawyers to participate in the trial, even though the defendants had specifically directed their lawyers to do nothing. Several defendants have also raised issues pertaining only to them. After careful review of the record in light of applicable law, we affirm.
An indictment, returned by a federal grand jury in New Jersey and consisting of 19 counts, charged defendants with a concatenation of 17 robberies committed in violation of the RICO statute to finance the purposes and aims of the "New World," a religious organization characterized by its members as a continuation of the Black Muslims.*fn1 The first count of the indictment charged defendants with conspiracy to violate the RICO statute; the second count, a substantive violation thereof.*fn2 Counts 3, 5, 7, 9, 11, 13, 15 and 17 charged the defendants with bank robbery.*fn3 Counts 4, 6, 8, 10, 12, 14, 16 and 18 charged them with placing the lives of bank employees and customers in jeopardy by using guns.*fn4
After the court denied several pre-trial motions,*fn5 defendants Upshaw and Albert Dickens, through counsel, stated that thereafter they would not participate in the proceedings. Dickens requested permission to remain in his cell and to allow his lawyer to observe the trial (N.T. 137a).*fn6 Each of the other defendants joined in Dickens' request (N.T. 140a-205a). The district court carefully questioned each defendant concerning his understanding of the consequences of such a decision.*fn7
Trial commenced on October 28, 1981. The district court, after examining each defendant again to determine if he still wished to waive his right to participate actively in the trial, advised each one that he could change his mind at any time. All of the defendants declined to do so (N.T. 15-32). The district court then found that the defendants had made a knowing, intelligent and voluntary waiver of their rights (N.T. 32).*fn8
Thereafter the jury heard testimony from 54 Government witnesses, who testified to the following scheme: From his cell in Rahway State Prison, defendant Albert Dickens assumed leadership as "lord" of the New World of Islam (N.T. 271-75, 690, 708-90, 982-83). Assisted by defendant Monroe, he recruited other inmates to commit armed robberies or "missions." Participants received a small share or "blessings," of the stolen money or "gold," which they pooled to finance the purchase of land in South Carolina, where they intended to establish a separatist community. The New World organized its members within a paramilitary hierarchy, which consisted of ranks ranging from "general," "major," "minister," and "captain" to "lieutenant" and "soldier" (N.T. 796).
The robberies or "missions" followed a general pattern consisting of one or more persons who guarded the door, others who jumped the bank counter for the "gold" and another who drove the getaway vehicle, usually abandoned for a switch car where the participants changed clothing (N.T. 431-32, 677-80, 703-07, 734). Following two rehearsal robberies at Cooper's Liquor Store and Smitty's Bar, the New World conducted at least 12 armed robberies within the next seven months.*fn9 During the heist at the Howard Savings Bank in Newark in November of 1980, an exchange of gunfire felled police officer John Gottfried. Defendant Lawson kicked and shot the mortally wounded Gottfried three or four more times while the officer lay on the floor of the bank. Then Lawson took Gottfried's gun and shot him again (N.T. 780-81).
On November 5, 1981, after hearing six days of testimony, the jury returned a verdict of guilty against all defendants on all remaining counts.*fn10 From the judgments of conviction defendants appeal.
The First Amendment Claim
Defendants contend that the district court erred in refusing to dismiss the indictment or, alternatively, to direct the Government to redact Counts 1 and 2, which alleged that the defendants' criminal enterprise operated within the framework of the New World. According to defendants, the indictment's repeated references to the New World religious organization impermissibly "chilled" and infringed upon their First Amendment rights and, in effect, placed their unpopular religious beliefs on trial. The drafting of the indictment and the presentation of the prosecution forced defendants to choose between participation in the trial on one hand and preservation of their First Amendment rights on the other, defendants argue, even though the Government could have used a less restrictive alternative by phrasing the RICO enterprise as a group of individuals who had associated for the purpose of committing robberies.
The First Amendment, which guarantees individuals freedom of conscience and prohibits governmental interference with religious beliefs, does not shield from government scrutiny practices which imperil public safety, peace or order. Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Davis v. Beason, 133 U.S. 333, 33 L. Ed. 637, 10 S. Ct. 299 (1890).*fn11 For example, in Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878), the Supreme Court, denying Mormons exemption from anti-bigamy laws, held that overtly criminal conduct could not be justified as religious practices. See also United States v. Starks, 515 F.2d 112, 124 (3d Cir. 1975), aff'd in relevant part sub nom. Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977) (no exception in Hobbs Act to sanction extortions committed for religious purposes).*fn12
On the other hand, although the Government has a compelling interest in enforcing its criminal laws and vindicating violations thereof, where that purpose directly or indirectly imposes a substantial burden upon protected First Amendment rights the Government must accomplish that goal with the least restrictive means. Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963); Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1940). For example, in United States v. Robel, 389 U.S. 258, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967), the Government charged the defendant with a violation of the Subversive Activities Control Act of 1950, 50 U.S.C. § 784(a)(1) (D), which interdicted employment in a defense facility by anyone belonging to a "Communist-action" organization. The Supreme Court sustained the defendant's challenge to the constitutionality of the statute, which it found overbroad in its proscription of legal as well as illegal association. The Court concluded:
"When legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a 'less drastic' impact on the continued vitality of First Amendment freedoms."
Whether the First Amendment requires the Government to draft or prosecute an indictment, resisted by the accused as an impermissible "chill" upon his religious beliefs, by the least restrictive alternative need not be decided inasmuch as the testimony at trial clearly demonstrated that the Government could not, without seriously compromising the truth or withholding important probative evidence, have presented this case in any other manner which would have restricted the defendants' claimed First Amendment rights to any lesser degree.
Defendants do not contend that the RICO statute itself or that any mention of the New World in the indictment or at trial impermissibly burdened their First Amendment rights. According to defendants, the constitutional violation occurred with the structuring of the indictment and the prosecution during trial in a manner which made the organization and goals of the New World central to the Government's proof.
Under the circumstances of this case, the Government, in enforcing the RICO statute, could not have used "less restrictive" means. To secure a conviction under RICO, the Government needed to prove the existence of an "enterprise" and a connected "pattern of racketeering activity."*fn13 An enterprise can be proved by evidence that individuals not only associated together through a formal or informal "ongoing organization" but also functioned as a "continuing unit" for a common purpose of engaging in a course of conduct. A pattern of racketeering activity can be proved by evidence of the defendants' participation in the required number of racketeering acts committed by the enterprise. United States v. Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981). See also United States v. Boffa, 688 F.2d 919, 923 (3d Cir. 1982) ("to establish a 'pattern' of racketeering activity, the Government must prove that at least two of these acts occurred within a ten-year period").
The Government defined the instant enterprise as "a group of individuals . . . [who] operated within the framework of the New World [and were] dedicated to the organized practice of armed robbery." The indictment did not claim that the New World was the enterprise but that the New World provided a structure or "formal organization" therefor. Testimony elicited at trial showed that the defendants planned many of the crimes at New World headquarters, recruited participants from the ranks of the New World and described and justified their activities with New World jargon such as "missions," "blessings," and "gold." Many of the defendants' lawyers, introducing themselves to the jury, referred to the defendants by their Muslim names. Many of the witnesses only knew the defendants by their Muslim names. The New World objective -- establishment of a separatist community in South Carolina -- provided the enterprise's "common purpose."*fn14
The district court specifically found that the references to the New World could not have been omitted:
"In light of the testimony which I have heard now from . . . some five witnesses, it would have been impossible for the government to present this case without any reference to the New World of Islam or to the ranks of the organization or to the roles within that organization of various people on trial here.
After all, those who claim to have been -- numerous persons claim to have been members of this organization and when they give the kind of testimony day after day, then the government had no alternative but to bring such an indictment and to bring forth such evidence in a public courtroom and as I have ruled pretrial, and I am now confirmed in that ruling by what I have heard at trial. . . ." (N.T. 1089-91)
Under these circumstances, the district court did not err in refusing to dismiss or redact the indictment.
Defendants also claim that the district court committed plain error in failing to ask voir dire questions aimed at determining whether the prospective jurors could decide impartially a criminal case involving Black Muslims accused of armed robberies, one of which involved the brutal murder of a policeman.
Although the district court specifically requested the defendants to submit voir dire questions, they did not. The district court read to the jurors the indictment, which contained references to the New World and its organization and purpose, as well as defendants' Muslim names. The court also asked each juror questions such as these:
Do you know of any reason why you couldn't be fair and impartial?
Would you be able to fairly judge the guilt or innocence of these defendants even if they elect not to participate?
In other words, would you be able to understand they are presumed to be innocent? And they have to do nothing in their defense?
(N.T. 114). The district court did not mention that the case involved the brutal murder of a policeman.*fn15
Although the Constitution does not require, by its explicit wording, that prospective jurors be questioned concerning possible racial or religious bias, Ristaino v. Ross, 424 U.S. 589, 47 L. Ed. 2d 258, 96 S. Ct. 1017 (1976), the Supreme Court, in its supervisory capacity over federal courts, has ruled that where a defendant requests such an inquiry, the trial judge should do so, Rosales-Lopez v. United States, 451 U.S. 182, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981), particularly where the circumstances suggest a "significant likelihood that racial prejudice might infect [the] trial." Ristaino v. Ross, 424 U.S. at 596. See also Ham v. South Carolina, 409 U.S. 524, 35 L. Ed. 2d 46, 93 S. Ct. 848 (1973) (the trial court might have asked such a question in light of the defendant's contention that the indictment constituted retaliation for his civil rights activities).
In the case at bar, the defendants contend that, in light of the prior state prosecutions for the predicate offenses, the Government pressed these RICO charges as a means to try the admittedly racist New World organization. Hence, a question relating to racial prejudice would have been proper. However, at trial the defendants failed to request such a question. Coupled with the district court's general inquiries relating to bias, omitting to ask this specific question during voir dire did not constitute an abuse of discretion. See United States v. Leftwich, 461 F.2d 586 (3d Cir.), cert. denied sub nom. Wright v. United States, 409 U.S. 915, 34 L. Ed. 2d 178, 93 S. Ct. 247 (1972) (pre-trial request for such a question must be renewed at time of voir dire).
Jury Instructions on Religious or Racist Views
The defendants next contend that the district court committed plain error in failing to instruct the jury to refrain from considering defendants' Islamic religion or racist views in reaching its verdict. Defendants fail to cite any decision which holds that such an omission ipso facto violates defendants' due process or First Amendment rights.
Although the district court directed defendants to submit points for charge, defendants did not request the district court to give such an instruction then or immediately prior to jury deliberation, as required by Fed. R. Crim. P. 30. In its interpretations of this rule, this court has concluded that, unless there has been a timely objection at trial, a defendant cannot raise the issue on appeal unless he can show that the error in the instruction was "such as to involve a manifest miscarriage of justice." United States v. Provenzano, 334 F.2d 678, 690 (3d Cir.), cert. denied, 379 U.S. 947, 13 L. Ed. 2d 544, 85 S. Ct. 440 (1964). See also United States v. Grasso, 437 F.2d 317, 320 (3d Cir. 1970), cert. denied, 403 U.S. 920, 29 L. Ed. 2d 698, 91 S. Ct. 2236 (1971) (no "plain error"); United States v. Restaino, 405 F.2d 628, 630 (3d Cir. 1968), cert. denied, 394 U.S. 904, 22 L. Ed. 2d 216, 89 S. Ct. 1012 (1969) (in absence of timely objection, defendant cannot raise issue on appeal "unless he establishes that the . . . charge constituted plain error"). We find no such "plain error" or "manifest miscarriage of justice" here. The district court's general instructions to the jury emphasized the importance of fairness and impartiality.*fn16 The district ...