characterizes the law of this circuit. In phrasing this issue the defendant has quoted from Neapolitan. What Phillips expressly avoids here but which is obviously implicit in his description of the issue in this case and therefore must be added is the word " personally " before the word "commit." Otherwise, Phillips, by embracing Neapolitan, must also embrace the conviction of Neapolitan and its affirmance by the United States Court of Appeals for the Seventh Circuit, in respect to which certiorari was denied by the United States Supreme Court.
Phillips advocates that Neapolitan supports his position. The court disagrees. In Neapolitan, the Seventh Circuit addressed what degree of relationship is necessary between a defendant and the alleged predicate acts to sustain a conviction of RICO conspiracy, 18 U.S.C. § 1962(d). Robert Neapolitan ("Neapolitan") was named in four counts of mail fraud and one count of RICO conspiracy. He was acquitted of all the counts of mail fraud by the district judge and went to trial on the RICO conspiracy count only. The four acts of mail fraud and eleven acts of bribery were the predicate acts which constituted the pattern of racketeering activity under 18 U.S.C. § 1961(5). Neapolitan was identified in only one act of bribery. Having been acquitted with respect to the four mail fraud counts, Neapolitan's only involvement in the conspiracy as recounted in the indictment was limited to the solicitation of one cash bribe. Neapolitan was found guilty of RICO conspiracy. Id. at 492-493. The Seventh Circuit noted that "a conspiracy to violate RICO should not require anything beyond that required for a conspiracy to violate any other federal crime," id. at 497, and that Congress, more likely than not, intended that 18 U.S.C. § 1962(d) be "broad enough to encompass those persons, who, while intimately involved in the conspiracy, neither agreed to personally commit nor actually participated in the commission of the predicate crimes." Id. at 498. (Emphasis added).
Neapolitan claimed that the government could not establish that he agreed to the commission of two acts of bribery since he was identified in only one act of bribery. The Seventh Circuit found substantial circumstantial evidence to support an inference that Neapolitan agreed to the commission of at least two predicate acts in the indictment even though he was personally involved in only one act. The Seventh Circuit thus affirmed Neapolitan's conviction.
Substantial evidence also exists here from which the jury could have and apparently did infer that Phillips agreed to conduct the affairs of the Court of Common Pleas of Philadelphia through a pattern of racketeering activity and that he agreed to join the conspiracy with knowledge of its goals and knowledge that at least two acts of racketeering of the type listed in the indictment be performed by one or more co-conspirators.
Phillips next argues that there was a prejudicial variance because the government initially alleged that Phillips was involved in two predicate acts: (1) an offer of $ 100.00 to Harris to reinstate Roland Sligh's bail and (2) Phillips' agreement to act as an intermediary in Harris' bribery solicitation of Carl Thomas. Contrary to Phillips' statement, even though the court granted Phillips' motion pursuant to Fed.R.Crim.P. 29(a) on Count II because of the government's failure of proof with respect to the Thomas case, the court ruled that the evidence may be considered in evaluating what role, if any, Phillips had in the conspiracy. Therefore, the Thomas matter was a possible object of the conspiracy. The allegations with respect to Commonwealth v. Roland Sligh (" Sligh ") and $ 100.00 were known and the subject of the December 17, 1987 court proceedings, prior to the trial. There was sufficient evidence to infer that Phillips bribed Harris to effect the release of Sligh from jail.
The court concludes that Phillips had sufficient notice of the charges in the indictment. The word "bean" was exised from Exhibit G-60 at line 19 on December 17, 1987, well in advance of trial. Phillips' prejudicial variance argument is without merit. See United States v. Schurr, 775 F.2d 549 (3d Cir. 1985).
Phillips contends that the court should grant judgment of acquittal pursuant to Fed.R.Crim.P. 29(c) because there is insufficient evidence to sustain the conviction on Count I. Phillips states as follows:
The Court charged the jury, both in its main charge, and in a supplemental charge addressed to questions asked by the jury during deliberations, that in order to convict Phillips of conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity it was necessary that the jury find that Phillips had either agreed to personally commit, or had knowledge of the commission of, at least two acts of racketeering listed as the predicate acts of Count II of the indictment.
Defendant Phillips' motion at 9. (Emphasis added.)
This statement in Phillips' motion is a flagrant distortion of the record. The court charged the jury that in order to convict Phillips of Count I, the jury must find that Phillips had either agreed to personally commit or knowingly agreed to become a member of a conspiracy that he knew had as one of its objects the commission by some person(s) in the conspiracy of at least two acts of extortion and/or bribery as described in the indictment.
There was evidence that Phillips bribed Harris for the suppression of evidence in the Commonwealth v. Rodney Brown (" Rodney Brown ") case and that he bribed Harris for his assistance in securing the transfer of the Commonwealth v. Loretta Massey (" Massey ") matter to Judge Ronald Merriweather. Testimony revealed that Phillips went to the holding cell to attempt to secure money from Thomas, whose bail had been revoked by Harris, to effectuate Thomas' release from jail. There was additional testimony and a videotape involving the Commonwealth v. Alvis Mapp (" Mapp ") case (Racketeering Act No. Six). Phillips testified that Thomas Henshaw, on behalf of Mapp, gave money to Harris who was in turn to deliver the money to Phillips for Mapp's defense. The jury could have inferred that Phillips' explanation was incredible since the government had a recorded telephone call from Harris to Henshaw wherein Harris asked Henshaw why he did not make it to City Hall that same day and Henshaw replied that he was sick.
Phillips requests a new trial based upon the fact that the court refused to grant a severance on grounds that Harris and Phillips possessed antagonistic defenses. Fed.R.Crim.P. 14 provides in pertinent part:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires . . .