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UNITED STATES v. HARRIS

March 14, 1988

United States of America
v.
Kenneth S. Harris, Romaine G. Phillips, Matthias Brown, a/k/a "Sonny"



The opinion of the court was delivered by: BECHTLE

 BECHTLE, UNITED STATES DISTRICT JUDGE.

 Presently before the court are the post-trial motions of defendants Kenneth S. Harris ("Harris"), Romaine G. Phillips ("Phillips") and Matthias Brown, a/k/a "Sonny," ("Brown"). After a review of the submissions by the parties, the court believes that the sequence that should be followed in addressing post-trial motions, to the extent that they are entitled to be addressed in this Opinion, will be to discuss the questions raised by Phillips first, Brown second, and Harris last. Defendants request relief in the alternative: judgment of acquittal pursuant to Fed.R.Crim.P. 29(c); arrest of judgment pursuant to Fed.R.Crim.P. 34; or a new trial pursuant to Fed.R.Crim.P. 33. For the reasons stated herein, defendants' motions will be denied.

 I. Romaine G. Phillips

 Phillips submits two grounds in support of his motion to arrest judgment: (1) the government's "amendment" of its indictment and (2) the failure of the indictment to charge an offense under 18 U.S.C. § 1962(d). Fed.R.Crim.P. 34 provides in pertinent part:

 
The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense . . .

 At the conclusion of the presentation of the evidence and prior to the submission of the case to the jury, the government submitted a redacted indictment (Exhibit C-1). At the court's direction the government deleted from the 109 overt acts charged in the indictment 15 of those acts because by their very terms they were not grammatically or in any other sense "overt acts." For example, Overt Act No. 29 simply stated that Rodney Brown had been arrested and charged on or about October 18, 1985, which plainly is not an overt act, although it is an item of evidence that is part of the case. Indeed, the overt acts which the court directed be removed because they were not by their terms "overt acts" were facts that were in public records and were not in dispute, and were either stipulated to as being correct or were admitted or conceded as true by the defendants or their counsel. With the exception of Phillips' objection as to prejudicial variance which the court overruled, the court accepted the parties having agreed to the form of the redacted indictment.

 Phillips also complains about the court's removal from the jury's consideration as a "predicate act" against Phillips his alleged involvement in the case of Commonwealth v. Carl Thomas (" Thomas "). See "Racketeering Act No. Four" at page 26 of the Indictment. Count II of the indictment in which Phillips was charged in addition to the conspiracy count, accused him of being a participant under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c). The court did not strike any of the evidence in respect to the Thomas case, nor did it approve the removal of Thomas or any feature of it from any place else in the redacted indictment. Indeed, the court concluded that the evidence respecting that case, including the testimony of defendant Thomas himself, was relevant and the attorneys argued that case at length to the jury and all features of that case received into evidence were considered by the jury in respect to the issues to be decided by them. The reason the court removed the Thomas case as one of the "predicate acts" from Count II (leaving seven acts in the indictment instead of eight) was not to impact upon Phillips, but in order to allow a proper verdict respecting Harris because the government failed to offer sufficient evidence for a jury to conclude that bribery under Pennsylvania law or solicitation of bribery had taken place between Phillips and Thomas as the government alleged in the indictment. For this reason it would have been improper for the jury to be permitted to consider the Thomas events as an eligible "predicate act" against Phillips' co-defendant Harris. The Thomas matter was plainly relevant for purposes of other issues in the case, and specifically in respect to the conspiracy charge that named all defendants including Phillips and the court so instructed the jury. The pertinence of removing the Thomas predicate act was to reduce to only one the number of alleged predicate acts against Phillips in the substantive RICO charge. Title 18, United States Code, § 1962(c), requires that a "pattern" of criminal activity as described in the indictment be proven by the government as an element of a substantive RICO charge. "Pattern" in turn requires, at a minimum, that at least two alleged predicate acts be found by the jury to have been committed by the defendant the jury is considering beyond a reasonable doubt and unanimously. 18 U.S.C. § 1961(5). The removal of this one predicate act left only one other predicate act that the court could consider Phillips had committed, and even if he had, the commission of just one predicate act would have been insufficient to sustain a Count II conviction; hence, the motion under Fed.R.Crim.P. 29(a) was granted by the court and Count II was dismissed against Phillips. Under these circumstances the court can see no reason why this defendant was prejudiced. *fn1"

 Phillips was convicted of Count I, conspiracy to violate RICO, 18 U.S.C. § 1962(d). The court correctly charged that in order to convict a defendant of Count I, the jury must find unanimously and beyond a reasonable doubt that each defendant knowingly and willfully agreed to join the conspiracy with knowledge of its goals and knowledge that at least two acts of racketeering of the type described in the indictment (i.e., bribery under state law and extortion under federal law) would be performed by some member(s) of the conspiracy. See United States v. Adams, 759 F.2d 1099, 1115-1116 (3d Cir.), cert. denied, 474 U.S. 971, 106 S. Ct. 336, 88 L. Ed. 2d 321 (1985). Phillips argues that since Count I charges a conspiracy to violate Count II and Count II did not identify two acts of racketeering activity which were to be the object of Phillips' membership in the conspiracy, Count I was improperly submitted to the jury because there was no valid charge of a violation of 18 U.S.C. § 1962(d). Phillips' position is that "absent a charge and proof of an agreement to commit two of the specified predicate crimes, a defendant cannot be convicted of conspiring to participate in the affairs of an enterprise through a pattern of racketeering activity." Defendant Phillips' motion at 6, n.4; United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir. 1986), cert. denied sub. nom., Messino v. United States, 479 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 and 479 U.S. 940, 107 S. Ct. 422, 93 L. Ed. 2d 372, quoting United States v. Martino, 648 F.2d 367, 396 (5th Cir. 1981). The court cannot agree with Phillips' position because it improperly 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).


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