U.S. v. Fiel

• Citation: 35 F.3d 997
• Decision Date: 30 September 1994
• Docket Number: 93-5034 and 93-5035,Nos. 93-5032,93-5033,s. 93-5032
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Allyn FIEL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Todd D. SAULNIER, a/k/a Easy, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John H. LEA, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael W. O'BIER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 997

35 F.3d 997

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Allyn FIEL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Todd D. SAULNIER, a/k/a Easy, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John H. LEA, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael W. O'BIER, Defendant-Appellant.

Nos. 93-5032, 93-5033, 93-5034 and 93-5035.

United States Court of Appeals Fourth Circuit.

Argued April 13, 1994.

Decided Sept. 30, 1994.

ARGUED: Gregory Beckwith, Phillips, Beckwith & Hall, Fairfax, VA, for appellant O'Bier; Blair Duncan Howard, Howard & Howard, Alexandria, VA, for appellant Lea; James M. Lowe, Alexandria, VA, for appellant Saulnier; Gregory Edward Stambaugh, Brown & Stambaugh, Alexandria, VA, for appellant Fiel. John Patrick Rowley, III, Asst. U.S. Atty., Alexandria, VA, for appellee. ON BRIEF: Helen F. Fahey, U.S. Atty., Marcus J. Davis, Asst. U.S. Atty., Nicole M. Healy, Sp. Asst. U.S. Atty., Alexandria, VA, for appellee.

Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation.

Affirmed in part and reversed and remanded in part by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge MURNAGHAN and Senior Judge ALEXANDER HARVEY, II joined.

OPINION

ERVIN, Chief Judge:

This case arises out of a series of events involving the Fates Assembly Motorcycle Club, headquartered in Baltimore. The Fates became involved in attempts to avenge the death of one of their members, Richard Capote, at the hands of Kirby Gallaghan, a member of the rival Pagan's Motorcycle Club. The Fates' various attempts, however, caused only the death of one of their own, George Hughes.

Twelve Fates members were indicted in connection with the attempted murder, and eight pled guilty. Beginning August 3, 1992, the four remaining defendants, Ronald Fiel, John Lea, Michael O'Bier and Todd Saulnier, stood trial on a Second Superseding Indictment alleging violations as follows:

Count 1--all defendants: 18 U.S.C. Sec. 1959(a)(1), Conspiracy to commit violent crimes to maintain or increase position in an enterprise engaged in racketeering activity;

Count 2--Fiel, Saulnier: 18 U.S.C. Sec. 1959, Conspiracy to murder a government witness to maintain or increase position in an enterprise engaged in racketeering activity;

Count 3--Lea: 18 U.S.C. Sec. 1959, Aiding and abetting or attempting to murder with a firearm to maintain or increase position in an enterprise engaged in racketeering activity on July 26, 1991; and

Count 5--O'Bier, Saulnier: 18 U.S.C. Sec. 1959, Aiding and abetting or attempting to murder with an M-1 rifle and pipe bombs to maintain or increase position in an enterprise engaged in racketeering activity in August, 1991.

The jury acquitted all defendants on Counts 2 and 3, and Saulnier on Count 5. The jury was unable to reach a verdict on Count 1 and on Count 5 with respect to O'Bier. Accordingly, on August 6, 1992, the court sua sponte declared a mistrial with respect to those counts without objection. That trial thus resulted in no convictions.

On August 19, 1992, the Grand Jury returned a Third Superseding Indictment, realleging Count 1 against all the defendants (new Count 1) and Count 5 with respect to O'Bier (new Count 2). The indictment also brought two new counts against defendants Fiel and Lea, alleging that they violated 26 U.S.C. Sec. 5861 by manufacturing a destructive device (new Count 3) and that they violated 18 U.S.C. Sec. 1959 by attempting to commit murder with a destructive device on October 4, 1991 to maintain or increase their position in an enterprise engaged in racketeering activity (new Count 4). Defendants moved for dismissal of the Third Superseding Indictment on the ground of prosecutorial vindictiveness. Their motion was denied.

This final indictment came to trial on September 30, 1992. Defendants were found guilty on all counts on October 9, 1992. Defendants were sentenced on December 11, 1992 as follows: Fiel--96 months on each of Counts 1, 3 and 4 to run concurrently; Lea--84 months on each of Counts 1, 3 and 4 to run concurrently; Saulnier--63 months on Count 1; and O'Bier--60 months on each of Counts 1 and 2 to run concurrently. Defendants appeal their convictions, making numerous assignments of error. For the reasons set out below, we affirm the convictions of Fiel, Lea and O'Bier, and reverse Saulnier's conviction and remand his case for a new trial.

I.

The Fates were a motorcycle club headquartered in Baltimore with local chapters in Woodbridge, Virginia (Northern Chapter); Fredericksburg, Virginia (Southern Chapter); and South Carolina. Fiel was national president of the club, although he retired in June, 1991. Saulnier was a member with no official position. Lea was Southern Chapter President and O'Bier was Southern Chapter Vice-President. Total membership in the club was approximately 60 members. The Pagans were a rival club with chapters all over the East Coast and a total membership between 600 and 900. The Fates and the Pagans had a tense relationship, made worse after a fight in the spring of 1991 between Capote and a Pagan member. Shortly thereafter, Fiel arranged for the club to obtain explosives in case the club needed them for use against the Pagans.

On July 26, 1991, the Northern Virginia chapter of the Fates congregated at the Woodbridge Inn in Woodbridge, Virginia to attend a field party where Pagan members were to have been located. Pagan Kirby Gallaghan pulled his truck into the parking lot of the inn and was noticed by the Fates. Capote approached Lea, Chapter President, and expressed his desire to "get" Gallaghan. Lea allegedly responded, "Go get him," permitting Capote to act. Capote and Melvin Payne got into a van driven by Payne and followed Gallaghan, who left the parking lot. As the van pulled adjacent to the vehicle driven by Gallaghan, Capote fired a weapon at Gallaghan. The shot blew out the driver's side window, but did not injure Gallaghan. Gallaghan returned fire, fatally striking Capote in the head.

Following Capote's funeral service on July 27, 1991, the Fates had a meeting at Fiel's house with all defendants in attendance. Mark Fiel (defendant Ronald Fiel's brother) told club members that the war against the Pagans would be stepped up and that if anyone got a chance to kill a Pagan and get away with it, they should go ahead and do it. Members were told that if anyone wanted to get out of the club, now was the time. Another meeting with defendants present took place in the first week of August, at which it was decided to do surveillance work to prepare ambushes on the Pagans. Some time after this meeting, the members determined that a committee headed by Robert Paris would be in charge of the war.

In mid-August, two Fates threw a hand grenade at Gallaghan's house, but it failed to explode. At a meeting with all defendants in attendance in late August following that failed murder attempt, Mark Fiel informed those present that every club member would participate in the war against the Pagans. The club discussed surveillance work and how to prepare ambush attempts.

In late August, several Fates attempted to ambush Gallaghan and other Pagans with pipe bombs and rifles. Saulnier conducted surveillance of Pagan residences to determine patterns of Pagan movement. O'Bier drove the vehicle that was supposed to serve as the get-away car. The ambush attempt was unsuccessful on that occasion, but O'Bier agreed to serve as driver on another attempt. Several other unsuccessful ambush attempts were made in August by Fates members, but no defendant was directly involved.

In early September, the Fates decided to build a remote-control bomb for use against the Pagans. On or about September 12, 1991, George Hughes and Lee Clifton constructed a bomb that was placed upon a vehicle driven by Pagan members. The bomb detonated and it blew the gas tank and back wheel off of the vehicle. This attempt did not harm the Pagan passengers. Mark Fiel then called a meeting that all defendants attended. They discussed building another, stronger bomb. Thereafter, Lea provided Paris and Reed with explosives.

On October 2, 1991, Paris told Lea that the second bombing attempt was about to take place and that he needed some help. Lea sent Payne to help and Lea left for vacation in Florida. On October 4, 1991, Payne, Hughes and Paris drove to Gallaghan's residence. Payne stood guard with a rifle as Hughes attached the bomb to a car owned by one of Gallaghan's Pagan roommates. The bomb failed to go off as the Pagans drove it to work. Hughes retrieved the bomb from the parking lot of Gallaghan's workplace. After informing Fiel that they were going to try again, Hughes repaired the bomb. Paris, Hughes and Payne then returned to the parking lot. As Hughes was attempting to arm the bomb, it exploded, killing him and injuring Paris and Payne. Later in October, Reed obtained some additional explosives for future use against the Pagans. He showed Saulnier where they were buried in case Reed "got shot or went to prison."

In December 1991, Fate member Philip McFarland approached law enforcement authorities and indicated that he wanted to cooperate with the investigation of the October 4 bombing. McFarland thereafter entered into a plea agreement with the government and pled guilty to the unlawful possession of a destructive device. McFarland made twenty-two undercover tape recordings of conversations with other Fates members regarding the Pagans and the possibility of intimidating or killing Clifton's wife to keep Clifton quiet. Hughes and Clifton were close friends and Hughes' death greatly upset Clifton. Fates became worried about Clifton's behavior and thought he might talk to law enforcement officials. Clifton disappeared in March 1992 and was believed to be cooperating with...