571 F.2d 880 (5th Cir. 1978), 76-3678, United States v. Elliott

Docket Nº:76-3678.
Citation:571 F.2d 880
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Alford ELLIOTT, Jr., Robert Ervin Delph, Jr., William Marion Foster, Recea Howell Hawkins, John Clayburn Hawkins, Jr., a/k/a J. C. and John Frank Taylor, Defendants-Appellants.
Case Date:April 21, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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571 F.2d 880 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,


James Alford ELLIOTT, Jr., Robert Ervin Delph, Jr., William

Marion Foster, Recea Howell Hawkins, John Clayburn

Hawkins, Jr., a/k/a J. C. and John Frank

Taylor, Defendants-Appellants.

No. 76-3678.

United States Court of Appeals, Fifth Circuit

April 21, 1978

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Rehearing and Rehearing En Banc Denied June 2, 1978.

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Denmark Groover, Jr., Frank H. Childs, Jr., Macon, Ga., for Elliott.

Deryl D. Dantzler, Macon, Ga., for Taylor and Delph.

Joseph H. Davis, David B. Higdon, Macon, Ga., for Foster.

Oscar B. Goodman, Las Vegas, Nev., for Recea Howell Hawkins and John Clayburn Hawkins, Jr.

John D. Carey, Joseph M. Lawless, Asst. U. S. Attys., Macon, Ga., D. L. Rampey, Jr., U. S. Atty., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before AINSWORTH, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

In this case we deal with the question of whether and, if so, how a free society can protect itself when groups of people, through division of labor, specialization, diversification, complexity of organization, and the accumulation of capital, turn crime into an ongoing business. Congress fired a telling shot at organized crime when it passed the Racketeer Influenced and Corrupt Organizations Act of 1970, popularly known as RICO. 18 U.S.C. §§ 1961 et seq. (1970). Since the enactment of RICO, the federal courts, guided by constitutional and legislative dictates, have been responsible for perfecting the weapons in society's arsenal against criminal confederacies.

Today we review the convictions of six persons accused of conspiring to violate the RICO statute, two of whom were also accused and convicted of substantive RICO violations. The government admits that in this prosecution it has attempted to achieve a broader application of RICO than has heretofore been sanctioned. Predictably, the government and the defendants differ as to what this case is about. According to the defendants, what we are dealing with is a leg, a tail, a trunk, an ear separate entities unaffected by RICO proscriptions. The government, on the other hand, asserts that we have come eyeball to eyeball with a single creature of behemoth proportions, securely within RICO's grasp. After a careful, if laborious study of the facts and the law, we accept, with minor exceptions, the government's view. Because of the complicated nature of this case, both factually and doctrinally, a detailed explication of the facts and of the reasoning underlying our conclusions must be undertaken.


Simply stated, this is a case involving a group of persons informally associated with the purpose of profiting from criminal activity. The facts giving rise to this generalization, however, are considerably more complex. Evidence presented during the 12 day trial implicated the six defendants and 37 unindicted co-conspirators in more than 20 different criminal endeavors. Because the jury found the defendants guilty as charged, with two exceptions, we proceed on the assumption that all relevant credibility choices were made in favor of the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The facts can most clearly be set forth by focusing on specific episodes, arranged in roughly chronological order.

A. 1970, Act One: Arson:

The history of the first Community Convalescent Nursing Home in Sparta, Georgia, began when defendant William Marion Foster encouraged a group of 34 blacks to invest in the project and ended several months later when the completed but unoccupied home was burned to the ground at Foster's behest. The second Community Convalescent Nursing Home was then built, at a profit, by Foster's construction company.

Foster, who had been in the construction and nursing home business, arranged for an

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SBA loan to the B. F. Hubert Development Corporation, comprised of 34 blacks. In expressing his willingness to help, Foster noted that SBA loans were available but that, tragically, many blacks did not know how to secure them. Foster set up a corporation, Community Convalescent Center, Inc., to lease the nursing home from the B. F. Hubert group. Construction on the home was completed in the summer of 1970, after which James E. McMullen, a coowner of the leasing corporation, worked to ready the home for its scheduled opening on December 4, 1970. On the evening of December 2, Foster ordered McMullen to fire the night watchman, Tommy Barnes. 1 The next night McMullen and his wife worked at the home until 11:00 p. m., when they left, locking the doors behind them. Within hours, the front door of the home was unlocked, and gasoline and explosives were strewn through the halls and ignited. An investigation by the Georgia State Fire Marshal's Office reached the conclusion that the fire was intentionally set, but the perpetrators were never caught.

The crime might have remained unsolved had it not been for admissions made three years later by Foster and codefendant John Clayburn Hawkins, ironically nicknamed "J. C.". Foster and J. C. had been attempting to elicit the cooperation of their friend and occasional business associate James Gunnells in the concealment of a stolen shipment of meat and dairy products (an incident discussed later in this opinion). To show that he and J. C. were serious, Foster told Gunnells that he had paid J. C. and his brother, Recea Hawkins also a codefendant $4500 to burn the Community Convalescent Nursing Home. Gunnells, who was also in the nursing home business, replied that there was nothing in a nursing home to burn. J. C. explained that he had used three 55 gallon drums of gasoline and one drum of naphtha and had no problem in starting the fire.

B. Counterfeit Titles/Stolen Cars:

From mid-1971 until at least the end of 1974, J. C. Hawkins and codefendants Robert Ervin Delph, Jr., and John Frank Taylor furnished counterfeit titles to and helped sell cars stolen by a major car theft ring operating in and near Atlanta, Georgia.

J. C. procured 200 counterfeit Georgia certificates of title in mid-1971 by furnishing negatives of titles to a Macon printer, Marvin Farr. After printing the 200 titles, Farr destroyed the negatives and the plates and buried the remains in his back yard. J. C. had also commissioned Farr to print books of state vehicle inspection stickers, for which he again furnished the negatives. Farr, however, was unable to complete the order because he could not devise a way to apply adhesive to the stickers. After a visit from J. C. during which J. C. demanded the inspection stickers "or else", T. 851, Farr left town. He was later arrested in Denton, Texas, and returned to Macon on state counterfeiting charges. In Macon he was contacted by Abe Crosby, an attorney and unindicted co-conspirator in this case. Crosby told Farr that he had been sent by people that Farr "was scared of" and that J. C. Hawkins wanted Farr to keep his mouth shut. After his release from jail, Farr was visited at his place of employment by J. C., who told him that he, Farr, was crazy "and that nobody talked about (J.C.) and got away with it". T. 856.

The car theft ring was comprised of Billy Royce Jackson, James A. Green, and Kenneth Sutton Boyd, all convicted car thieves and key witnesses for the prosecution in this case. Each testified that on several occasions he purchased counterfeit certificates of title from Delph and Taylor for $25 or $50 apiece. Green and Boyd testified that Delph and Taylor more than once identified their source of counterfeit titles as a man named "J. C." in Macon. 2 Similarly, Larry Estes, a cousin of James Gunnells, purchased several counterfeit titles from J.

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C., both directly and through a middleman, Joe Breland. Green testified that in 1972 and 1973, he stole cars on request for Delph and Taylor. In the late summer or early fall of 1974, J. C. visited Green at the furniture store where Green was employed and asked him to steal two cars. Over the next year, Green stole several cars for J. C., at $400 per car. Recea Hawkins often accompanied his brother to pick up and pay for the cars.

Titles printed by Farr and distributed by J. C. were recovered in Alabama, California, Florida, Georgia, North Carolina, and Texas in connection with investigations of car thefts. In some cases, however, J. C. was able to recapture both car and title before either fell into the hands of the police. One such episode involved Benjamin F. Chester, Jr., who leased from J. C. a lounge adjacent to a liquor store owned and run by J. C. In 1971, J. C. sold Chester three cars "wholesale" and furnished the certificates of title. Chester, in turn, sold one of the cars to Raymond Booker. Instead of having Chester sign his title over to Booker, J. C. simply furnished Booker with a new "title". In July 1972, J. C. met with Chester and Booker at the lounge and demanded that the cars and titles be returned because they had "got hot". T. 1007. Booker recalled no threats from J. C., only the statement, "I've got to have my car back so y'all don't be hard headed". Chester, however, was reluctant to return his cars and remembered that J. C. finally stated, "I tell you what, if you don't give me them cars back, I will kill you myself or I will have you killed". Both men returned their cars and titles.

C. Stolen Hormel Meat:

On March 30, 1972, a truckload of approximately 33,000 pounds of Hormel meat packed in cardboard boxes left the packing plant in Fremont, Nebraska, consigned to the Alterman Food Company in Atlanta, Georgia. The trailer carrying the shipment arrived in Smyrna, Georgia, late that night and was parked at the South Cobb Service Station...

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