603 F.2d 535 (5tht Cir. 1979), 76-4360, United States v. Diecidue

Docket Nº:76-4360.
Citation:603 F.2d 535
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank DIECIDUE, Larry Neil Miller, Frank Boni, Jr., a/k/a
Case Date:October 01, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 535

603 F.2d 535 (5tht Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frank DIECIDUE, Larry Neil Miller, Frank Boni, Jr., a/k/a

"Mustache Frankie," Manuel Gispert, Anthony

Antone, and Homer Rex Davis,

Defendants-Appellants.

No. 76-4360.

United States Court of Appeals, Fifth Circuit

October 1, 1979

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Henry Gonzalez, Tampa, Fla., for Diecidue.

James O. Brecher, Jacksonville, Fla. (Court-appointed), for Miller.

Paul Antinori, Jr., Tampa, Fla., for Davenport.

George D. Gold, Miami, Fla., for Boni.

B. Anderson Mitcham, Tampa, Fla. (Court-appointed), for Gispert.

James D. Arnold, Tampa, Fla., for Davis.

Robert W. Knight, Federal Public Defender, Tampa, Fla., for Antone.

Sidney M. Glazer, Katherine Winfree, T. George Gilinsky, Washington, D. C., for plaintiff-appellee.

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

Before GODBOLD, SIMPSON and RONEY, Circuit Judges.

RONEY, Circuit Judge:

In this appeal we consider challenges to convictions for conspiracy and substantive crimes under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. § 1961 Et seq., and various federally proscribed acts of racketeering.

The six defendants before us were among thirteen charged in a twelve-count indictment with offenses ranging over a period between May 1975 and May 1976. [1] Following

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a lengthy jury trial, the six defendants were convicted on almost every count in which they had been charged. 2 Having carefully considered the extensive trial record and the many and diverse legal arguments made on appeal, the Court concludes the convictions of defendants Diecidue, Boni and Davis must be reversed and the convictions of Antone, Gispert and Miller must be affirmed.

Each defendant has been separately represented on this appeal and each has filed a separate brief. Each counsel has appropriately sought for his client the advantage of any relevant arguments made by other counsel. Each has also argued issues applicable to his client alone. In this opinion, after briefly stating the facts adduced at trial, we treat several issues which could affect all of the convictions presented for review. We find that none of these arguments merits reversal of any conviction. We then discuss additional issues as they focus on each defendant, affirming and reversing as we proceed.

Background

Although the facts are treated in greater detail herein in conjunction with discussion of specific issues raised on appeal, an overview of the conspiracy's activities in roughly chronological order will be useful.

The record evidence relevant to the issues on appeal, viewed most favorably to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), describes an enterprise whose membership grew as its criminal interests diversified. The enterprise was founded, the Government proposed, by defendant Diecidue who sought protection of his vending machine business through the murder of a new competitor, Manuel Garcia. Diecidue supposedly recruited defendants Antone and Gispert in April or May of 1975 to carry out the crime.

In June Antone brought Marlow Haskew into the enterprise to drive for Gispert while he attempted to shoot Garcia. Gispert obtained the shotgun for the attempt and told Haskew that Diecidue was to pay the three $20,000 for the killing. Twice Haskew and Gispert drove to Garcia's hotel with a loaded shotgun but failed to locate him.

The next attempt on Garcia's life was made with explosives. In May Gispert had met with defendant Miller and Willie Noriega and had purchased a gun from Miller. At that meeting Miller asked Noriega to obtain explosives and suggested he deal with Gispert through Miller so Miller could hike up the price and make some money. Noriega was never able to supply the requested explosives.

During the last week of June Gispert and Haskew drove to a service plaza on the highway from Tampa to Miami where they picked up dynamite from defendant Boni. The dynamite was transported back to Antone's

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house where Antone constructed a triggering device and showed Gispert and Haskew how to attach the dynamite to it. On June 28 Antone, Gispert and Haskew attached the bomb to Garcia's car. The device exploded, destroying the car and injuring Garcia.

Gispert led Garcia to believe that the attempt on his life had been ordered by Cesar Rodriguez, a Tampa bar owner, and Garcia, in turn, offered $20,000 for Rodriguez' murder. Gispert also obtained murder contracts from codefendant Victor Acosta on the lives of Bernard Dempsey, a former U. S. Attorney, and Richard Cloud, a former Tampa police officer.

In July Gispert and Haskew drove to Miami where they delivered six ounces of cocaine, obtained from Acosta, to Boni. Gispert, Haskew and Antone divided the profits.

Later in July the same trio decided to carry out the Rodriguez murder with explosives. Gispert procured the dynamite through defendant Davis, Antone constructed a triggering device and Gispert and Haskew placed the bomb. When the bomb detonated the car was destroyed and the driver, a family friend, was injured.

Gispert and Haskew made several unsuccessful attempts to locate and kill Dempsey in August and September. Acosta had issued the contract on Dempsey's life because, as a U. S. Attorney, Dempsey had prosecuted several organized crime figures and Acosta owed him over $40,000 in legal fees for work done as a defense attorney after leaving the prosecutor's office.

In September the enterprise gained another member when Haskew assisted Benjamin Gilford to escape from prison. Gilford agreed to serve as triggerman on five murder contracts issued by Acosta. Dempsey, Cloud and Rodriguez were identified as three of the intended victims. Later in September Haskew and Gilford unsuccessfully attempted to murder Rodriguez with a sawed-off shotgun during a car chase through Tampa.

In September and October Haskew and Gilford, joined on one occasion by Miller, committed several robberies. The proceeds were used to finance enterprise activities or support the participants.

The enterprise obtained equipment to carry out the contract murders in September and October. Antone and Haskew purchased a van which was modified into an "assassination" vehicle by cutting shotgun slits in the sides. Antone also gave Haskew a .32 caliber automatic pistol and silencer which he had obtained from Acosta. Gispert had given the weapon to Acosta to procure a silencer. Miller bought the ammunition for the weapon and he and Haskew test-fired it.

Richard Cloud was targeted for murder because, as a Tampa policeman, he had harassed Acosta in his drug business and was expected to testify in October at the trial of a close friend of Acosta's. On October 23 Haskew and Gilford drove to Cloud's home, and while Haskew circled the block, Gilford fatally shot Cloud with the silenced .32 caliber pistol.

After the murder Haskew traveled to Miami where he discussed obtaining counterfeit money with Harvey Davenport and George DeFeis, who were also indicted as coconspirators in the enterprise. In November Haskew made another trip to Miami and stole a kilogram of cocaine, "speed" capsules, a coin collection and jewelry from DeFeis. The cocaine and a diamond ring were turned over to Antone, who sold the cocaine to Acosta. Another ring, the coins and speed were given to Miller.

In December Haskew purchased from Davenport $40,000 in counterfeit bills, some of which Haskew passed in Florida, New Jersey and Pennsylvania. Miller attempted to sell some of the bills and used a counterfeit hundred dollar bill to purchase cologne in a Clearwater department store.

In January 1976 Miller, according to Haskew's testimony, asked Haskew to get him a weapon with a silencer so that he and Scarface Rivera could make a hit on a man living in a trailer who intended to testify against them. Haskew was never able to supply the weapon.

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In February Gilford attempted to recruit another participant to complete remaining murder contracts and was subsequently arrested. Haskew was arrested shortly thereafter. Both confessed, setting forth the details of the conspiracy.

Sufficiency of Indictment

Defendants raise several objections to Count One of the indictment in which a RICO conspiracy is charged. Section 1962(d) of the Act makes unlawful a conspiracy to violate § 1962(c) which in turn provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

18 U.S.C.A. § 1962(c).

Despite defendants' arguments reflecting a tireless search for ambiguity and omission in the indictment, we are convinced that Count One adequately alleged all essential elements of a § 1962(d) offense and fairly informed defendants of the charges against them.

Defendants contend first that the enterprise whose affairs they allegedly conspired to conduct was not one within the scope of the Act. The enterprise, they assert, must be an identifiable group with finite goals and an existence separable from the pattern of racketeering activity to which some or all of its members ultimately resort. "(A) bunch of crooks," defendants argue, "who decide to do whatever comes along, criminal or otherwise, in order to make a 'buck,' is . . . utterly removed from anything Congress had in mind."

Defendants fail to recognize the breadth of the Act's definition of "enterprise" and its expansive interpretation and application by this Court. "Enterprise" is defined to include "any...

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