23 F.3d 1189 (7th Cir. 1994), 91-2065, United States v. Cyprian

Docket Nº:91-2065, 91-2071 and 91-3190.
Citation:23 F.3d 1189
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Phillip CYPRIAN and Leroy V. Williams, Defendants-Appellants.
Case Date:May 06, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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23 F.3d 1189 (7th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Phillip CYPRIAN and Leroy V. Williams, Defendants-Appellants.

Nos. 91-2065, 91-2071 and 91-3190.

United States Court of Appeals, Seventh Circuit

May 6, 1994

Argued Feb. 14, 1994.

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[Copyrighted Material Omitted]

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Robert J. Erickson, Joseph C. Wyderko (argued), Marilyn Gainey Mitchell, Dept. of Justice, Crim. Div., Washington, DC, Bernard A. Smith, Nancy Vecchiarelli, Office of U.S. Atty., Cleveland, OH, for U.S.

Suzanne Philbrick, Valparaiso, IN (argued), for Phillip Cyprian, defendant-appellant.

John L. Kelly, Jr., Kelly & Associates, Merrillville, IN (argued), for LeRoy V. Williams.

Before POSNER, Chief Judge, CUDAHY, Circuit Judge, and McDADE, District Judge. [*]

McDADE, District Judge.

This case involves three consolidated appeals by two criminal defendants who participated in the organization and operation of an illegal bingo game, the "McBride Game." Appellant Phillip Cyprian was indicted for violating various provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C. Sec. 1962(c)) (Count 1) and is awaiting trial on this count. Cyprian was also indicted and convicted with Appellant

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Leroy Williams, among others, of conducting an illegal gambling business (18 U.S.C. Sec. 1955) (Count 15); conspiring to defraud the Internal Revenue Service (18 U.S.C. Sec. 371) (Count 16), making false entries in labor union records (29 U.S.C. Sec. 439(c)) (Count 13); 1 embezzling labor union funds (29 U.S.C. Sec. 501(c)) (Counts 3-9); 2 and filing false income tax returns (26 U.S.C. Sec. 7206(1)) (Counts 19-21).

Cyprian has filed two appeals. In the first appeal, Cyprian claims that his final judgment of conviction on Counts 3-9, 13, 15, 16, and 19-21, entered on May 7, 1991, should be reversed on the grounds of misjoinder, failure to sever, selective prosecution, vindictive prosecution, outrageous government conduct, and ineffective assistance of counsel. The second appeal is interlocutory and challenges the district court's denial of Cyprian's post-trial motion to dismiss the severed RICO count (Count 1) on double jeopardy grounds. Williams appeals a final judgment of conviction on Counts 15 and 16, entered on May 7, 1991, on the grounds of insufficient evidence. For the reasons which follow, we affirm on all counts.

BACKGROUND

In early 1983, Phillip Cyprian was president of the Local 1014 United Steel Workers Union and involved in various criminal activities. These activities included embezzlement of union funds, tax fraud, and making illegal entries in labor union records. In addition to these activities, Cyprian and his administrative aide, Leroy Williams, helped others organize and operate an illegal gambling business in violation of RICO, namely, an illegal bingo game known as the "McBride Game."

The "McBride Game" was allegedly organized as a non-profit venture under the sponsorship of St. Mark's Catholic Church in Gary, Indiana, where Monsignor Morales, one of the game's instigators, was the parish priest. However, the profits from the McBride Game, rather than being donated to the church, were pocketed by the principal operators of the game: Seymour Levin, Seymour Klein, Louis Del Grosso, and Kathleen Rainey. Bingo, apparently a favorite past time in middle America, is illegal in Indiana if the revenue generated from the game is pocketed as profit for the game's sponsors, rather than donated to charitable organizations. 3 Profit is exactly what Phillip Cyprian, Leroy Williams, and the principal operators generated when the "McBride Game" gained momentum. By March 1986, as many as 35 chartered buses from nearby states brought people to the McBride Game, with attendance ranging from 450 to 700 people on "regular" nights when the prize was $500 per game, and 700 to 1200 people on "bonanza" nights when the prize was $1,000 per game. 4 On an average bonanza night, the McBride Game would have gross receipts of about $90,500, with a net profit of $37,500. Portions of the generated profit were paid out each week as salary to the "frontmen" organizers, Monsignor Morales and Phillip Cyprian, and to McBride Game "employees." 5 Leroy Williams initially assumed the role of a security guard supervisor 6 and

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would periodically take reservations for the games during the week.

The McBride Game operated successfully on this basis from early 1983 until Cyprian lost the election for president of Local 1014 to Larry Regan. Before Regan took office on May 31, 1985, the McBride Game operators, in an apparent attempt to prevent Regan from terminating the McBride Game, created, and had the Church and Union respectively execute, two backdated contracts naming Williams as the official director of security for the McBride Game and Local 1014's property manager for McBride Hall. Although Regan's independent attempts to shut the game down were unsuccessful, on March 18, 1986, the government shut the game down based in part on information obtained by Regan.

APPELLANT CYPRIAN'S CLAIMS

This case involves two appeals by Appellant Phillip Cyprian ["Cyprian"]. The first appeal seeks reversal of his convictions on Counts 3-9, 13, 15, 16, and 19-21 on six grounds: misjoinder; severance; selective prosecution; vindictive prosecution; outrageous government conduct; and ineffective assistance of counsel. 7 The second appeal is interlocutory and raises only one issue: did the trial court commit reversible error when it denied Cyprian's motion to dismiss Count 1? Cyprian contends that it did and asks this court to dismiss Count 1 on double jeopardy grounds.

  1. Reversal of Convictions

    1. Misjoinder and Severance

    When two or more defendants are charged in a single indictment, Rule 8(b) governs joinder of defendants and offenses. United States v. Brisco, 896 F.2d 1476, 1515 (7th Cir.), cert. denied, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990). Rule 8(b) provides:

    Rule 8. Joinder of Offenses and of Defendants.

    (a) Joinder of Offenses. * * * *

    (b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. 8 Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

    Under Rule 8(b), multiple defendants may be tried together if their charged conduct arose from the "same act or transaction or the same series of acts or transactions." In other words, if the acts of each defendant are performed according to a common scheme or plan, joinder is proper. The issue of joinder is a threshold question, determined by whether the allegations in the indictment, as returned, satisfy the requirements of Rule 8(b). United States v. Curry, 977 F.2d 1042, 1049 (7th Cir.1992).

    In the original indictment, the government charged Cyprian with violations of RICO, embezzlement, tax fraud, operating an illegal gambling business, and making false entries in union records. As returned, all counts in the indictment were properly joined by allegations that Cyprian had conducted the affairs of Local 1014 through a pattern of racketeering activity; these allegations served not only as the predicate acts for the RICO charge in Count 1, but also as

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    the substantive charges in Counts 3-9, 13, 15, 16, and 19-21.

    Before trial on the original indictment, Cyprian filed a Rule 14 motion for severance from his codefendants on all counts. Federal Rule of Criminal Procedure 14 provides in relevant part:

    Rule 14. Relief from Prejudicial Joinder.

    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.

    The trial judge denied the motion but decided to sever the RICO count from the remaining charges in the indictment. Cyprian was then tried by a jury on Counts 3-9, 13, 15, 16, and Counts 19-21. The record indicates that Cyprian's trial counsel did not renew his motion for severance in the district court before, during, or after trial. However, after the jury convicted Cyprian on the unsevered counts, Cyprian filed both a motion to dismiss Count 1 on double jeopardy grounds--an issue discussed below--and this appeal, arguing that the embezzlement and false entry charges were misjoined with the tax fraud and illegal gambling charges, because the predicate acts for embezzlement and false entry did not relate to the acts connected with tax fraud and illegal gambling.

    Given this sequence of events, it appears that Cyprian made a tactical decision not to renew the motion for severance, but instead to gamble on a joint trial and take his chances at acquittal, perhaps knowing that, if convicted, he could later argue that Count 1 was barred by the Double Jeopardy Clause, an argument which had some support at that time. See Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) (Double Jeopardy Clause bars reprosecution of "same conduct"). Thus, having placed his bets on acquittal in a joint trial or dismissal of Count 1, Cyprian cannot now hedge that bet by renewing his motion for severance "so that he can have another crack at a jury." See United States v. Taglia, 922 F.2d 413, 417 (7th Cir.1991). Nor can Cyprian now claim that he is entitled to a new trial because Counts 3-9, 13, 15, 16 and 19-21 were misjoined.

    First, when the indictment was returned, joinder was proper under Rule 8, even if severance of Count 1 later raised the issue of whether the remaining counts should have been severed under Rule 14. Second, "[o]nce the...

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