UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided as amended january 27 1983.: December 15, 1982.
UNITED STATES OF AMERICA
DICKENS, ALBERT, APPELLANT; UNITED STATES OF AMERICA V. PITTMAN, FRED, JR., APPELLANT; UNITED STATES OF AMERICA V. WASHINGTON, JAMES, APPELLANT; UNITED STATES OF AMERICA V. PERSONS, LONNIE, APPELLANT; UNITED STATES OF AMERICA V. UPSHAW, DEWEY, APPELLANT; UNITED STATES OF AMERICA V. COOPER, ROBERT, ROBERT COOPER, A/K/A MUBARAK RAI ALI, APPELLANT; UNITED STATES OF AMERICA V. MONROE, KEITH, APPELLANT; UNITED STATES OF AMERICA V. CONERLY, ALVIN, ALVIN CONERLY, ALSO KNOWN AS HIJR, APPELLANT; UNITED STATES OF AMERICA V. LAWSON, WILLIE LEE, WILLIE LEE LAWSON, A/K/A ACQUEEL, APPELLANT; UNITED STATES OF AMERICA V. GREY, CLAUDE, AHMED MUHAMMAD, A/K/A CLAUDE GREY, APPELLANT; UNITED STATES OF AMERICA V. SKINNER, RAYMOND, RAYMOND SKINNER, ALSO KNOWN AS RAFEEQ, APPELLANT; UNITED STATES OF AMERICA V. THOMPSON, WALTON EARL, APPELLANT; UNITED STATES OF AMERICA V. CLARK, JAMES, APPELLANT; UNITED STATES OF AMERICA V. BRUNSON, JAMES, APPELLANT; UNITED STATES OF AMERICA V. KREPS, SHELDON, APPELLANT; UNITED STATES OF AMERICA V. MOSES, ROSCO, APPELLANT; UNITED STATES OF AMERICA V. DICKENS, RONALD, APPELLANT
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.
Author: Van Dusen
Opinion OF THE COURT
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."
Id. at 268.
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 court did not abuse its discretion in failing to give this instruction. See United States v. Bamberger, 456 F.2d 1119, 1131 (3d Cir.), cert. denied sub nom. Elam v. United States, 406 U.S. 969, 32 L. Ed. 2d 668, 92 S. Ct. 2424 (1972) (burden rests upon defendants to object to error at "earliest possible opportunity").
Sixth Amendment Claim
Defendants also assign as error the district court's failure to compel defendants' counsel to participate in the trial, despite each defendant's express direction to his lawyer to the contrary. The defendants claim that the court's refusal violated the public's right to a fair trial and the defendants' rights to due process and effective assistance of counsel.*fn17 The district court, granting the defendants' request to be absent, reasoned that requiring disruptive behavior from the defendants to justify exclusion from the courtroom made little sense but requested counsel for each defendant to remain in court throughout the trial on a "stand-by" basis. Unlike many situations, in which the defendants desire to represent themselves, the defendants in the case at bar did not wish anyone, including themselves, to represent their interests. They preferred, instead, to rely upon the presumption of innocence. Thus, cases relied upon by the defendants, dealing with lack of counsel or the parameters of self-representation, can be distinguished. Mayberry v. Pennsylvania, 400 U.S. 455, 27 L. Ed. 2d 532, 91 S. Ct. 499 (1971), for example, approved the appointment of stand-by counsel for a defendant who chose to represent himself. The concurring opinion of Chief Justice Burger, upon which defendants rely heavily, simply noted that the appointment of stand-by counsel to represent a recalcitrant defendant, whose uncensored and unrestrained exclamations to the trial judge resulted in a finding that the defendant was in contempt of court, rested within the sound discretion of the trial judge; the Sixth Amendment did not require as much. Id. at 468. No other justice joined in this concurrence, which antedated Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975).
Recognizing a defendant's constitutional right to represent himself, the Supreme Court, in Faretta, rejected any notion that the Sixth Amendment requires a trial judge to force defendants to be represented by counsel. The Court remarked:
"The counsel provision . . . speaks of the 'assistance' of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant -- not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.
Id. at 820-21 (footnotes and citations omitted). The Court distinguished a defendant's right to the assistance of counsel from the state's alleged right to compel him to accept a lawyer he does not want even though
". . . in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him."
Id. at 834. A fortiori, if the Sixth Amendment does not require the participation of "compulsory counsel" to assist a defendant representing himself, then a defendant who validly waives the right to counsel and objects to a lawyer's involvement in his defense on First Amendment grounds cannot be forced to accept his services without transmogrifying the protection from restraint embodied in both Amendments into shackles of restraint.
Moreover, requiring counsel to have participated over the defendants' objections would have raised a host of other difficulties. In Wiggins v. Estelle, 681 F.2d 266 (5th Cir. 1982), for example, the trial court compelled the defendant, who had validly waived his right to counsel, to accept a stand-by, court-appointed public defender. Although the court permitted the defendant to represent himself, stand-by counsel forcibly interposed his unsolicited assistance into the defense to the point where the court of appeals considered the intrusion a violation of the defendant's right to represent himself. Similarly, a trial court, finding that the defendant's waiver of the right to counsel was "uninformed" and therefore invalid, might deny the defendant's request to represent himself, even though he claimed that his religion prevented him from accepting a lawyer's assistance. Thereafter, the defendant conceivably might bring a civil rights action in federal court against the court-appointed lawyer to recover damages and obtain equitable relief on the grounds that the unwanted legal representation had deprived him of his protected First Amendment rights.
In the case at bar, the defendants totally rejected participation in the trial in order to protect what they considered to be their First Amendment rights. They represented to the court that they perceived a conflict between the free exercise of their religion and the defense of the indictment. The district court could not simply ignore such an assertion, however much the court may have disagreed with their legal or philosophical analysis. The district court carefully advised each defendant of the dangers and disadvantages of no representation by counsel.*fn18 See United States v. Welty, 674 F.2d 185 (3d Cir. 1982). The defendants admit on appeal that their waiver of counsel was knowing, intelligent and voluntary. They clearly declared to the district court that they did not want to participate in the trial themselves or through counsel. To allow defendants to request no representation at trial and then on appeal to claim error in the court's grant thereof invites every accused haled into court to demand two trials. At the first trial he can refuse to participate, assess the prosecutor's case, await the verdict and, if unfavorable, appeal on the grounds that the court should have required his lawyer to defend him. At the second trial he can defend on the merits, having had a full preview and dress rehearsal from the first trial. See Johnson v. United States, 318 U.S. 189, 201, 87 L. Ed. 704, 63 S. Ct. 549 (1943).
Having validly waived their right to the effective assistance of counsel, the defendants cannot complain now of the effect thereof. United States v. Flanagan, 679 F.2d 1072 (3d Cir. 1982). The district court properly refused to require counsel to participate after defendants had made knowing, intelligent and voluntary waivers, particularly since counsel were not restrained from pointing out possible errors affecting their clients and from moving the court to rectify such errors by appropriate instructions to the jury (see, e.g., N.T. 1155-59; 1168-71).
Fourth Amendment Claim
Defendant Cooper contends that the district court committed plain error in admitting into evidence guns which police had seized in a stairwell of the apartment building where he was staying temporarily. To prevail, Cooper must show that the search was illegal and that he had an actual and reasonable expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978). Assuming, arguendo, that Cooper's sojourn at the friend's apartment conferred upon him a legitimate expectation of privacy in the apartment itself, testimony clearly supported the district court's finding that the police officers discovered the weapons in a plastic bag on a staircase leading to the roof of the apartment building (N.T. 882-86). The district court found that the searched area was
". . . a completely common hallway. As a matter of fact, it isn't even a hallway, a stairwell separated from the rest of the building by doors. Your photographs establish that.
"If somebody wants to run in there and throw down a bag of guns, you can hardly complain about it later on."
Expecting privacy in a building staircase accessible to other tenants and the general public cannot be considered reasonable. In similar contexts, courts of appeals have rejected such claims of expected privacy where defendants have placed the seized evidence in public places. See, for example, United States v. Reicherter, 647 F.2d 397 (3d Cir. 1981) (trash placed in a public area); United States v. Freie, 545 F.2d 1217 (9th Cir. 1976) (per curiam), cert. denied sub nom. Gangadean v. United States, 430 U.S. 966, 52 L. Ed. 2d 356, 97 S. Ct. 1645 (1977) (cache of marijuana in open field); and United States v. Arboleda, 633 F.2d 985 (2d Cir. 1980), cert. denied, 450 U.S. 917, 67 L. Ed. 2d 343, 101 S. Ct. 1362 (1981) (aluminum foil package thrown outside apartment window onto building ledge).
The district court's finding that Cooper had no legitimate expectation of privacy in the place where he had "hidden" the guns is not clearly erroneous.
Fifth Amendment Claim
Defendant Lawson contends that the district court committed plain error by admitting into evidence statements which he made to the Newark police.
A voluntary confession does not violate a defendant's due process rights. Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). To be "voluntary," a confession must be the "product of an essentially free and unconstrained choice . . . ." Culombe v. Connecticut, 367 U.S. 568, 602, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961). To determine whether a confession meets this standard, the court must examine the totality of the circumstances under which the defendant made it. Clewis v. Texas, 386 U.S. 707, 18 L. Ed. 2d 423, 87 S. Ct. 1338 (1967).
In the case at bar, to establish "involuntariness," Lawson relies upon his leg wound and the length of time which elapsed between his arrest and confession. Defendant received a leg would one week prior to his arrest. A police officer testified that the bandaged wound did not appear to need attention and that Lawson did not act as if it did. Lawson has not alleged that he asked for, and that the police denied, needed medical assistance. In addition, the lapse of nine hours between arrest and confession, alone, does not compel a finding of involuntariness. In Haynes v. Washington, 373 U.S. 503, 504, 10 L. Ed. 2d 513, 83 S. Ct. 1336 (1963), relied upon by Lawson, the police threatened the defendant with continued incommunicado detention and promised him access to his family only if he signed an inculpatory written statement. Lawson has made no such allegations.
The district court found Lawson's confession to be voluntary, and Lawson has not shown that finding to be clearly erroneous. See United States ex rel. Harris v. Hendricks, 423 F.2d 1096 (3d Cir. 1970).
Defendants Conerly, Cooper and Brunson urge that under Fed. R. Crim. P. 8(b) the Government improperly joined them as defendants and that the district court erred in failing to sever certain counts of the indictment filed against them.
Fed. R. Crim. P. 14 allows the court to sever defendants or offenses which have been improperly joined in an indictment or information. The court may grant a severance when the defendant can show that the jury could not reasonably expected to "compartmentalize" the evidence as it relates to him, United States v. DeLarosa, 450 F.2d 1057 (3d Cir. 1971), and that the failure to sever clearly and substantially prejudices him to the point of depriving him of a fair trial. United States v. Reicherter, supra. Where the Government charges multiple defendants with a single conspiracy, the interests of judicial economy usually favor a single trial. United States v. Jackson, 649 F.2d 967 (3d Cir. 1981). The possibility that evidence will be admissible against some but not all defendants does not require severance. United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert. denied, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176 (1972).
In the case at bar, defendant Cooper points to the brevity of the jury deliberations (four hours) to demonstrate juror confusion. Defendant Conerly finds error in the district court's failure to ascertain whether the other defendants would have testified at individual trials. Both defendants Conerly and Brunson complain that the Government named them as a participant in only one-third of the 18 robberies and, therefore, should have tried them separately.
However peripheral defendants perceive their participation, Congress intended RICO prosecutions to entrammel "even the smallest fish." United States v. Starnes, 644 F.2d 673 (7th Cir.), cert. denied, 454 U.S. 826, 70 L. Ed. 2d 101, 102 S. Ct. 116 (1981). Neither a disparity in evidence nor the introduction of evidence more damaging to one defendant than another entitles the seemingly less culpable defendant to severance. United States v. Simmons, 679 F.2d 1042 (3d Cir. 1982); United States v. DeLarosa, supra.
Defendant Conerly has not made any showing that his co-defendants would have testified on his behalf at a separate trial. In view of their refusal to participate in their own defense, Conerly's undocumented representations to the contrary lack credibility. Such unsupported assertions do not suffice. United States v. Provenzano, 688 F.2d 194 (3d Cir. 1982), and United States v. Boscia, 573 F.2d 827 (3d Cir.), cert. denied, 436 U.S. 911, 98 S. Ct. 2248, 56 L. Ed. 2d 411 (1978).*fn19
The Government presented some evidence linking each defendant to the conspiracy. The district court did not abuse its discretion in refusing to sever these defendants. See United States v. Somers, 496 F.2d 723 (3d Cir.), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974).
Defendant Albert Dickens also contends that the RICO counts should have been severed due to the prejudice necessarily resulting from introduction of evidence relating to an unpopular religious group. However, mere association with an unpopular group does not require severance. United States v. DeLarosa, supra. Finally, defendants Albert Dickens and Moses argue that racketeering act 9 of Count 2, which involved the brutal murder of the policeman, should have been severed. Defendants do not cite any authority to suggest that a crime committed to further a conspiracy may be too inherently prejudicial to allow presentation thereof to the jury. The district court did not abuse its discretion in refusing to sever these offenses.
Sufficiency of the Evidence
Defendant Brunson, challenging the sufficiency of the evidence supporting his conviction, alleges that he was not present at a meeting to plan the robbery of the Newark bank and that the Government's witness never saw or heard him do any illegal act. Furthermore, Brunson argues, he was not present during a meeting to plan the Irvington bank robbery and had been assigned only the role of creating a diversion, the execution of which the Government failed to prove.
Appellate courts, confronted with such a challenge to the sufficiency of the evidence, must determine whether "substantial" evidence supports the convictions. The evidence must be viewed in the light most favorable to the Government, and all reasonable inferences must be drawn in favor of sustaining the jury's verdict. United States v. Sturm, supra; United States v. Pearlstein, 576 F.2d 531 (3d Cir. 1978).
In the case at bar, Government witness John Smith, a member of the New World of Islam, placed defendant Persons but not defendant Brunson at the meeting to plan the Newark bank robbery (N.T. 966). Smith testified that Brunson had been assigned to assist Persons in creating a diversion. On the day of the robbery Brunson travelled with co-defendants to Newark and later he and Persons reported back to those conducting the bank robbery that "everything looked all right" (N.T. 976). The bank robbery then took place (N.T. 977-78).
A similar factual pattern occurred with the robbery of the Irvington bank. Smith testified that Persons but not Brunson attended the planning meeting, that Persons and Brunson had been assigned the responsibility of creating another diversion, that Brunson was present near the bank with co-defendants who participated in the actual robbing of the bank and that Brunson and Persons returned to the bank and signaled that everything was "all right." The Government presented no testimony that the diversion -- a bomb scare at a nearby school -- occurred (N.T. 1022-23). Defendant Brunson did attend two other meetings to plan robberies which co-defendants later aborted (N.T. 1033-35; 1041-42). From this testimony the jury could reasonably infer that Brunson knew of the robbery plans and participated therein. Therefore, viewing the evidence in the light most favorable to the Government, we find that substantial evidence supports the jury verdict against Brunson.
Defendant Thompson, also challenging the sufficiency of the evidence supporting his conviction, contends that the Government failed to prove that he participated in two acts furthering the enterprise's pattern of racketeering activity. Thompson admits his participation in the Elizabeth bank robbery but claims that the evidence does not show his involvement in the robberies at Miller's Rentals or the Broad Street Bank, Trenton.
Two men wearing ski masks robbed Miller's Rental on December 24, 1980, allegedly while defendant Thompson was incarcerated. Testimony at trial limited Thompson's involvement to his presence in a car with co-defendants who were looking for a getaway car to steal. The Government presented no testimony that Thompson actually participated in the theft of the vehicle or exactly when the car was stolen (N.T. 1053-54; 1293).
The Government also presented testimony that he saw defendant Skinner meet with Thompson to discuss the robbery of the Trenton bank. The witness did not hear the actual conversation between the defendants (N.T. 1048).
Section 1961(5) requires at least two acts of racketeering activity to comprise a "pattern" thereof. In United States v. Palmeri, 630 F.2d 192, 203 (3d Cir. 1980), cert. denied, 450 U.S. 967, 67 L. Ed. 2d 616, 101 S. Ct. 1484 (1981), this court held that the Government
". . . may link a particular defendant to that pattern [of racketeering activity] by producing evidence that shows his knowledge and participation in the scheme. . . . To obtain convictions, it also had to prove that each defendant was voluntarily connected to that pattern and performed at least two acts in furtherance of it."
The jury could have reasonably inferred from Thompson's meeting with Skinner that the two had discussed and planned the Trenton bank robbery. The jury also could have inferred that the ambiguous use of the word "they" in connection with the Miller's Rental robbery included Thompson. Admittedly, on cross-examination, these inferences may have been refuted or proven untenable. However, defendant Thompson did not test the credibility, question the accuracy or clarify the ambiguity in the testimony of Government witnesses.*fn20 In addition, neither Brunson nor Thompson moved for judgments of acquittal and, therefore, they failed to preserve their right to challenge the sufficiency of the evidence supporting the charges in the indictment. See United States v. Manos, 340 F.2d 534 (3d Cir. 1965). We have examined the record and, viewing the evidence against Brunson and Thompson in a light most favorable to the Government, we find no "plain error or defects affecting substantial rights." See Fed. R. Crim. P. 52(b).*fn21
Defendants Persons and Monroe contend that the Government failed to prove any connection between the enterprise and interstate commerce. Section 1962(c) requires that the enterprise engage in or conduct activities which affect interstate commerce. See United States v. Vignola, 464 F. Supp. 1091 (E.D.Pa.), aff'd, 605 F.2d 1199 (3d Cir. 1979), cert. denied, 444 U.S. 1072, 62 L. Ed. 2d 753, 100 S. Ct. 1015 (1980). The enterprise, not the individual defendant, must be engaged in or affecting interstate commerce. United States v. Joseph, 510 F. Supp. 1001 (E.D.Pa. 1981), citing United States v. Vignola, supra. Even a minimal nexus will satisfy the statutory requirement. United States v. Mazzio, 501 F. Supp. 340, 342 (E.D.Pa. 1980), citing United States v. Rone, 598 F.2d 564 (9th Cir. 1979), and United States v. Nerone, 563 F.2d 836 (7th Cir. 1977). In the case at bar, testimony at trial showed that the enterprise's activities included the racketeering acts, which admittedly had an impact on interstate commerce. Therefore, the Government established the necessary connection between the enterprise and interstate commerce.
The defendants also claim that the district court erred in holding that the Double Jeopardy Clause does not bar successive prosecution by state and federal authorities,*fn22 that the district court erred in refusing to transfer the case to another district,*fn23 that the district court erred in failing to question jurors concerning pre-trial publicity,*fn24 that the trial was fatally scarred by cumulative error,*fn25 and that the district court abused its discretion in sentencing defendants.*fn26 We have reviewed the relevant testimony and applicable law and find no merit to the foregoing and all other claims*fn27 asserted by the defendants.
In conclusion, we hold that the district court did not err in refusing to dismiss or redact the indictment and in refusing to compel counsel to participate in all discussions of the defendants' objections. We also hold that, in light of all the surrounding circumstances, the district court did not abuse its discretion in failing to ask voir dire questions designed to determine jurors' racial or religious biases or to instruct jurors that the defendants' racial and religious beliefs were irrelevant to the question of their guilt or innocence. Finally, we hold that the district court did not abuse its discretion or commit plain error in its rulings upon the matters raised by defendants and enumerated in the Appendix to this opinion. Accordingly, the judgments of conviction will be affirmed.
APPENDIX SHOWING WHICH DEFENDANTS RELIED ON THE 21 ISSUES RAISED IN THESE APPEALS (Nos. 82-5063 to 82-5079)
Specifically, the defendants made the following claims:
Albert Dickens (No. 82-5063) argued that
(1) the RICO counts of the indictment and the manner in which the Government conducted the case impermissibly chilled and infringed upon the First Amendment rights of the defendants;
(2) the district court erred in failing to ask any voir dire questions aimed at determining whether the prospective jurors could be impartial in a case involving Black Muslims who murdered a policeman and robbed banks to finance the establishment of a separatist community;
(3) the district court erred in failing to instruct the jury to refrain from considering the defendants' racist and religious views in reaching a verdict;
(4) the district court erred in failing to sever the RICO counts;
(5) the district court erred in failing to sever Racketeering Act 9 of Count 2; and
(6) the trial was marred by cumulative error.
Pittman (No. 82-5064), by letter to the Clerk dated May 7, 1982, joined in the brief of Albert Dickens.
Washington (No. 82-5065), by letter to the Clerk dated March 4, 1982, also joined in the brief of Albert Dickens. By letter dated April 29, 1982, he joined in the arguments advanced by Lawson, Thompson, Cooper and Ronald Dickens insofar as "errors concerning the sentencing and procedures."
Persons (No. 82-5066) joined in the briefs of Albert and Ronald Dickens, the reply briefs of Albert Dickens and Conerly and also argued that
(7) the Government failed to establish the essential elements of a RICO violation.
Upshaw (No. 82-5067) argued the issue numbered 12, infra.
Cooper (No. 82-5068) joined in the brief of Albert Dickens and the reply briefs of Conerly and Albert Dickens by letter to the Clerk dated August 23, 1982, and argued that
(8) the district court failed to consider his claim with regard to illegally seized evidence, which should have been suppressed;
(9) the RICO prosecution violated the Double Jeopardy Clause;
(10) the district court erred at sentencing in failing to consider any factor other than the gravity of the crime; and
(11) the district court erred in failing to sever him from the other defendants.
Monroe (No. 82-5069) joined in the brief of Conerly and Albert Dickens by letter to the clerk dated August 23, 1982, and argued the issues numbered 7, 9, 20 and 23, and adopted by reference the "various arguments" of co-defendants.
Conerly (No. 82-5070) joined in the brief of Albert Dickens, argued the issue numbered 11 and argued that
(12) the district court erred in failing to require counsel to proceed with a defense over the defendants' objections; and
(13) the defendants' waivers were ineffective in certain respects.
Lawson (No. 82-5071) argued the issues numbered 10 and 12 and also that
(14) the district court erred by admitting into evidence his statements to the police.
Grey (No. 82-5072), by letter to the Clerk dated March 3, 1982, joined in the brief of Albert Dickens.
Skinner (No. 82-5073), by letter to the Clerk dated May 10, 1982, joined in the brief of Albert Dickens.
Thompson (No. 82-5074) joined in the brief of Albert Dickens and argued that
(15) there was insufficient evidence to support his convictions on Counts 1, 2, 17 and 18 and to prove Predicate Act 13; and
(16) there was a retroactive misjoinder as to Counts 13 and 14.
Clark (No. 82-5075), by letter to the Clerk dated May 10, 1982, joined in the brief of Albert Dickens.
Brunson (No. 82-5076) joined in the brief of Albert Dickens and also argued the issue numbered 11 and that
(17) there was insufficient evidence to support his conviction.
Kreps (No. 82-5077), by letters to the Clerk dated March 16 and April 7, 1982, joined in the brief of Albert Dickens and point II of the brief of Ronald Dickens.
Moses (No. 82-5078) joined in the briefs of Albert Dickens, Lawson, Thompson, Cooper and Ronald Dickens and the reply briefs of Conerly and Albert Dickens, the issue numbered 12 and also argued that
(18) the district court should have declared a mistrial on the grounds of prosecutorial misconduct;
(19) the district court erred in refusing to strike the words "separatist" and "paramilitary" from the indictment;
(20) the district court erred in refusing to transfer the case to another district; and
(21) the district court erred in failing to question jurors on the question of pre-trial publicity.
Ronald Dickens (No. 82-5079) joined in the brief of Albert Dickens and issues numbered 10 and 12.