U.S. v. Starrett
| Decision Date | 27 June 1995 |
| Docket Number | Nos. 89-5669,92-5006,s. 89-5669 |
| Citation | 55 F.3d 1525 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Walter STARRETT, Timothy Kevin Duke, Michael Lee Cave, Donald Joe Sears, James Thomas Nolan, Frederick Joseph Hegney, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Donald Joe SEARS, James Thomas Nolan, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Paul McKenna (court-appointed), Coconut Grove, FL, for Starrett.
Kathy Hamilton (court-appointed), Coconut Grove, FL, for Duke.
Leon E. Tozo (court-appointed), Coral Gables, FL, for Cave.
Michael G. Smith, Ft. Lauderdale, FL, for Sears in both cases.
Dexter W. Lehtinen, Kendall B. Coffey, U.S. Attys., Theresa M.B. Van Vliet, Kathleen M. Salyer, Anne Ruth Schultz, Linda Collins Hertz, Asst. U.S. Attys., Miami, FL, for the U.S.
Charles G. White (court-appointed), Miami, FL, for Nolan in both cases.
Fred A. Schwartz (court-appointed), Adorno, Zeder, Allen, Yoss, Bloomberg, Schwartz & Goodkind (court-appointed), Miami, FL, for Hegney.
Appeals from the United States District Court for the Southern District of Florida.
Before CARNES, Circuit Judge, DYER and GUY *, Senior Circuit Judges.
This appeal arises out of the conviction of appellants James Thomas Nolan, James Walter Starrett, Donald Joe Sears, Frederick Joseph Hegney, Michael Lee Cave, and Timothy Kevin Duke--six members of a gang known as the Outlaw Motorcycle Club. All six appellants were convicted in the United States District Court for the Southern District of Florida for violating the conspiracy provision of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1962(d). In addition, Nolan, Sears, Hegney, and Cave were convicted of violating a substantive RICO provision, 18 U.S.C. Sec. 1962(c), and Hegney was convicted of three counts of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.
The appellants contend that the district court made numerous errors, including: (1) the denial of appellants' Fed.R.Crim.P. 29 motions seeking judgments of acquittal on insufficiency of evidence grounds; (2) the denial of Duke's Fed.R.Crim.P. 29 motion in which Duke contended that he had presented sufficient evidence to establish as a matter of law his defense of withdrawal from the conspiracy; (3) the rejection of Nolan's proposed jury instructions; (4) the denial of Cave's motion for judgment of acquittal based on a variance between the indictment and proof at trial; (5) the denial of the severance motions of Hegney, Sears, and Cave; (6) the denial of Nolan's motion for a new trial based on newly discovered evidence; and (7) the denial of Nolan's and Starrett's motions for a mistrial based on the government's alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 1 For the reasons discussed below, we affirm the convictions.
On June 3, 1986, a federal grand jury indicted Nolan, Starrett, Sears, and Hegney, for substantive RICO offenses in violation of 18 U.S.C. Sec. 1962(c) (Count I), and for RICO conspiracy in violation of 18 U.S.C. Sec. 1962(d) (Count II). On July 29, 1986, the jury returned the second superseding indictment which added Cave and Duke as defendants in both counts, and which added Counts III, IV, and V charging Hegney alone with substantive narcotics offenses in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Minor corrections were made in the third and fourth superseding indictments. 2 In addition, Count I of the fourth superseding indictment provided for the forfeiture of any and all interests of appellants in the real property commonly known as the Outlaws' South Florida Clubhouse.
Prior to trial, the district court ruled on numerous motions, including motions for severance by Hegney, Sears, and Cave, which it denied.
Jury selection began on December 10, 1987, and after a trial lasting more than a year, the jury returned its verdict on January 23, 1989. The jury found Nolan, Hegney, Sears, and Cave guilty on both the substantive RICO and RICO conspiracy counts; it also found Hegney guilty on the three narcotics counts. The jury found Starrett and Duke guilty only as to the conspiracy count. The district court sentenced the appellants as follows: Nolan was sentenced to two consecutive terms of twenty-five years' imprisonment; 3 Hegney was sentenced to various terms, some of which were consecutive and some concurrent, totalling forty years; Cave and Sears were each sentenced to two consecutive terms of twenty years' imprisonment; Duke was sentenced to twenty years' imprisonment; and Starrett to thirteen years' imprisonment. 4 Each of the six defendants appeals his conviction.
The Outlaw Motorcycle Club (the "Outlaws") is one of the four largest national "one-percenter" motorcycle clubs. 6 Witnesses testified that the term "one-percenter"--usually depicted by the symbol "1%er"--is motorcycle gang parlance meaning that the club is comprised of the one percent of the overall biker population who maintain total independence from society, and who are known to cause the most trouble, or "raise the most hell." The Outlaws was established sometime in the mid-1960s, and operates on a national, regional, and local level. There are several chapters of the Outlaws in Canada as well. The local chapter that is involved in this case is the South Florida chapter of the Outlaw Motorcycle Club ("South Florida Outlaws" or "South Florida chapter").
Appellant Nolan established the South Florida chapter of the Outlaws around 1969. Nolan served as president of the South Florida Outlaws for many of the years relevant to this case, and he also served as president of the regional organization for part of that time. After an aggressive membership drive in the early 1970s, Florida eventually had the largest concentration of Outlaws in the United States.
To become an Outlaw, a prospective member has to be sponsored by a "patchwearing" member of the Outlaws. A "patchwearing" or full member of the Outlaws wears various patches, which are also referred to as the member's "colors." One patch proclaims the Outlaws' status as a "1%er" club, and another patch bears the Outlaws' "Charlie" logo consisting of a skull and crossed pistons. Outlaws are instructed to guard their patches with their lives, and no item bearing the Charlie logo is allowed to touch the floor.
A sponsored prospective member is known as a "probate" and identified by a mandatory probationary "patch" consisting of a cut-off denim jacket that says "Probationary Outlaws" on the back. The Outlaw members must agree by unanimous vote before a probate can become a full-fledged patchwearing member.
Only white males are allowed to become members of the Outlaws. Each Outlaw member is required to own an American-made motorcycle and to maintain it in good operating condition. The club holds weekly meetings, known as "church" meetings, and all patchwearing members are required to attend. In addition, members are required to attend national, regional, and local "runs," which are motorcycle trips and parties that may last several days. National runs are held three or four times a year, regional runs occur between five and twenty times a year, and local runs usually occur weekly. Members pay monthly dues, and also have to pay fees for each run. If an Outlaw is in need of legal assistance, each member is usually assessed a fee for that purpose.
Most of the South Florida Outlaws' activities revolve around their clubhouse. The clubhouse is a house or trailer where the Outlaws hold their meetings and socialize. Armed club members guard the clubhouse twenty-four hours a day. One witness testified that the South Florida Outlaws' clubhouse is equipped at all times with an arsenal of guns and explosives, which are kept in the "toy box."
Each chapter of the Outlaws has elected officials--a president, vice-president, secretary-treasurer and an "enforcer." 7 During Nolan's presidency, no member of the Outlaws was allowed to retire from the club. Even after Nolan's reign, a member who attempted to leave the Outlaws was threatened with harm to himself and his family.
One of the most salient characteristics of the Outlaws is their attitude toward women. Not only are women not allowed to be members of the Outlaws, but a woman who associates with an Outlaw is known as his "old lady" and is deemed to be his property. If an old lady is "patched" it means that she can wear a patch identifying her status as the property of her Outlaw boyfriend. Some are designated as property of the club as a whole. Outlaw members often keep more than one old lady at a time, and the member ranks his old ladies by their respective levels of responsibility and privilege. The old lady with the most responsibility, and ostensibly the most privilege, is designated his "number one old lady." The members sometimes buy and sell their old ladies amongst themselves.
It is the responsibility of the number one old lady to educate a new old lady as to her duties. Those duties are to work and give her money to her Outlaw man, to do whatever any Outlaw tells her to do with no questions asked, to refrain from taking drugs unless given permission by an Outlaw, and to stay out of trouble in general. In addition to her other responsibilities, the number one old lady gathers family information about a new old lady which can later be used to threaten the woman should she attempt to run away.
Most old ladies are required to work either as nude dancers or prostitutes to support their Outlaws. Sometimes old ladies can obtain their freedom from the Outlaws by buying their way out. One method the Outlaws employ to maintain control over an old lady is to provide her with a steady supply of drugs. This, coupled with the small amount of money that the old ladies...
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