U.S. v. Patrick

• Decision Date: 29 March 2001
• Docket Number: 99-1388,Nos. 99-1387,s. 99-1387
• Citation: 248 F.3d 11
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. SAMUEL PATRICK AND JASON ARTHUR, Defendants, Appellants. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 11

248 F.3d 11 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. SAMUEL PATRICK AND JASON ARTHUR, Defendants, Appellants.

Nos. 99-1387, 99-1388

United States Court of Appeals For the First Circuit

Heard March 29, 2001

Decided May 3, 2001

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Malcolm J. Barach for appellant Samuel Patrick.

Donald K. Freyleue, with whom Benjamin D. Entine was on brief, for appellant Jason Arthur.

Karin B. Hoppmann, Attorney, Criminal Division-Appellate Section, Department of Justice, with whom Donald K. Stern, United States Attorney, and George Vien, Assistant United States Attorney, were on brief, for appellee.

Before Boudin, Lynch, and Lipez, Circuit Judges.

LYNCH, Circuit Judge.

This appeal raises questions about the definition of the "enterprise" element of criminal charges under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"), and the admissibility of evidence concerning the adequacy of police investigations and of investigation tips received by police officers as to who committed a crime.

Samuel Patrick and Jason Arthur were each convicted on over six counts of a criminal RICO indictment arising out of their membership in the Intervale Posse (IVP), a gang that distributed crack cocaine from 1990 to 1996 in the Dorchester neighborhood of Boston. Arthur was also convicted of the 1992 murder of a rival drug dealer. One of their defenses was that the IVP was simply a loose connection of individual, young drug entrepreneurs, one competing with another. RICO, they say, was meant to counter organized crime, and there was nothing particularly "organized" about the crimes committed by the IVP. They argue that their convictions should be reversed because the judge improperly instructed the jury, because the evidence did not support a RICO conviction, and for other reasons.

I.

Jason Arthur and Samuel Patrick were each charged in 1997 with racketeering under 18 U.S.C. § 1962(c), conspiracy to commit that offense under 18 U.S.C. § 1962(d), and conspiracy to distribute crack cocaine under 21 U.S.C. § 846. Arthur was charged with two counts and Patrick with three counts of possession of crack with intent to distribute under 21 U.S.C. § 841(a)(1).¹ In addition, Arthur was charged with murder in aid of racketeering under 18 U.S.C. § 1959. Both were convicted and sentenced to life imprisonment.

II.

We describe the evidence as the jury could reasonably have found it. During the 1990s, members of the IVP sold crack cocaine in the Intervale neighborhood of Dorchester, an area of Boston. The IVP was the successor to an earlier gang, known as "Adidas Park." The gang gave a new spin to the concept of brand identification. IVP members wore Adidas clothing, identified themselves and referred to the gang by signifying the Adidas brand logo (a sign of three fingers signifying the three stripes on Adidas products), and, in a few instances, owned mirrors painted with their nicknames and the IVP logo. Members referred to one another as family. Younger members, often teenagers, "pumped"² (or sold) drugs for the older members, although some younger members also operated on their own.

Patrick held the supplier's role within the IVP. He decided who could sell on IVP territory, set the prices for the IVP's crack, and directed sales by younger members. Patrick also determined when the gang would eliminate rivals. Arthur supplied crack to the IVP and also bought crack from Patrick. In addition, Arthur helped keep order in the IVP, reprimanding younger members for risky behavior that attracted police attention.

As part of the IVP's operating procedures, IVP members would page suppliers like Patrick and Arthur to deliver drugs to a customer's house. At the house, the crack was "cut" and "bagged" in smaller amounts for resale on the street, and the customer was paid in crack or money for use of the house. Although IVP members competed with one another for individual customers, they all profited from increased sales overall in the neighborhood. Only IVP members could sell on the IVP's "turf," and the gang used actual and threatened violence to deter rivals. Members held "sessions" (or meetings) where they discussed rival drug operations as well as problems with police.

In December 1992, Courtney Thomas, a non-IVP member, was selling drugs on IVP territory without permission. When an IVP member named Antwan told Thomas that he could not "pump" on IVP territory, Thomas threatened him. Antwan informed Arthur, who said he would "handle it." That evening Arthur met two other IVP members, Cecil McKnight and Allen Ivy, at a wooded area where the IVP hid drugs and weapons. Arthur carried two guns. The three men went to the house at 161 Intervale Street where Thomas was reportedly selling drugs. When Thomas got into his car in front of the house, Arthur fired repeatedly into the car, killing Thomas and wounding Thomas's companion, Fleurette Farrell.

In 1995, Jennifer Monteiro, a neighborhood resident and reported drug dealer, was arrested on unrelated charges involving the use of fraudulent or stolen credit cards. Monteiro agreed to cooperate with the police and began making purchases from the IVP, including several purchases in 1996 from Arthur and Patrick. Audio tapes of these transactions were made. One purchase occurred on July 24, 1996, when Monteiro paged Patrick for two ounces of crack. Patrick directed her to go to a park near a neighborhood school, where Monteiro was met by a go-between named Terrence. Terrence handed Monteiro the drugs and then gave the money to Patrick, who was in his parked truck nearby. In August 1996, police arrested several IVP members, including Patrick and Arthur. Police seized cash, drugs, scales, and items with the IVP or Adidas logo from the homes of IVP members. From Jason Arthur's home, police seized over 300 grams of crack cocaine, several thousand dollars, a scale, and a mirror with the IVP logo and the name "Kilo J." They also seized a handgun from Patrick's truck.

III.

A. RICO Enterprise: Instructions and Sufficiency

Both defendants claim that the district court erred in rejecting their proposed jury instruction which defined a criminal "enterprise" under 18 U.S.C.§ 1962(c)³ as having an "ascertainable structure," and that the jury's verdict cannot stand on the evidence. The district court did not err, and the evidence supports the verdict.

The district court charged the jury that under RICO the term "enterprise":

includes any individual, partnership, corporation, association or other legal entity, and any group of individuals associated in fact although not a legal entity. An enterprise may be a formal or an informal organization of individuals so long as they have associated together for a common purpose. . . . In the present case, it is alleged that each defendant, and others, were associated in fact to form an enterprise, called among other names, Intervale, the Intervale Posse, and IVP. To find that an association in fact existed, you must find that the alleged enterprise had an ongoing organization, formal or informal, and that its various associates functioned as a continuing unit for a common purpose. This means that although individuals may come and go, the enterprise must continue in an essentially unchanged form during substantially the entire period alleged in the indictment.

Note that the enterprise element is different from the racketeering activity element. Although the proof to establish these elements may overlap, proof of one does not necessarily establish the other. Rather, the enterprise must be an entity separate and apart from the pattern of racketeering activity in which it engages.

The defendants requested that the district court further define the term "enterprise" by instructing the jury that "[a]t a minimum, the enterprise must exhibit some sort of structure for the making of decisions, whether it be hierarchical or consensual." The court refused, and defendants now appeal its "enterprise" instruction.

Defendants based their request on a line of cases which they say support the requirement of an explicit "ascertainable structure" jury instruction under RICO. See Chang v. Chen, 80 F.3d 1293, 1297 (9th Cir. 1996); United States v. Riccobene, 709 F.2d 214, 222 (3d Cir. 1983), overruled on other grounds by Griffin v. United States, 502 U.S. 46 (1991); United States v. Bledsoe, 674 F.2d 647, 664 (8th Cir. 1982). Defendants refer to their proposed language as the Bledsoe test. In Bledsoe, which involved securities fraud, the Eighth Circuit required "proof of some structure separate from the racketeering activity and distinct from the organization which is a necessary incident to the racketeering" in order to avoid to collapse of the "enterprise" element with the separate "pattern of racketeering activity" element of a RICO offense. 674 F.2d at 664. Bledsoe thus required that a RICO enterprise have an "ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity. . . . [which] might be demonstrated by proof that a group engaged in a diverse pattern of crimes or that it has an organizational pattern or system of authority beyond what was necessary to perpetrate the predicate crimes." Id. at 665 (internal quotation marks and citation omitted); see also Chang, 80 F.3d at 1297 (adopting "ascertainable structure" requirement to avert the danger of the "enterprise [being] no more than the sum of the predicate racketeering acts"). The prosecution rejoins that Bledsoe and its successors like Chang use the concept of "ascertainable structure" simply as an analytic device in determining whether the evidence was sufficient to support the verdict, and also argues, in a bit of non-sequitur, that the phrase has no use as a jury instruction. Cf. Riccobene, 709 F.2d at 223 (evidence sufficient to satisfy "enter...