649 F.2d 1066 (5th Cir. 1981), 78-5586, United States v. Stratton

Docket Nº:78-5586, 78-5589.
Citation:649 F.2d 1066
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Harry O. STRATTON, William D. Riggs and Loy Z. Harrell, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Samuel S. SMITH, Defendant-Appellant.
Case Date:July 06, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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649 F.2d 1066 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,


Harry O. STRATTON, William D. Riggs and Loy Z. Harrell,


UNITED STATES of America, Plaintiff-Appellee,


Samuel S. SMITH, Defendant-Appellant.

Nos. 78-5586, 78-5589.

Unit A

United States Court of Appeals, Fifth Circuit

July 6, 1981

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

As Modified on Denial of Rehearing and Rehearing En Banc Oct. 5, 1981.

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Harry W. Meshaw, Jr. (Court-appointed), Atlantic Beach, Fla., for stratton.

Richard L. Brown (Court-appointed), Boca Raton, Fla., for Riggs.

Daniel D. Richardson (Court-appointed), Jacksonville, Fla., for Harrell.

John J. Daley, Jr., Curtis S. Fallgatter, Asst. U. S. Attys., Jacksonville, Fla., John F. Depue, Appellate Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

James L. Harrison, Jacksonville, Fla., for defendant-appellant Smith.

Appeals from the United States District for the Eastern District of Louisiana.

Before GOLDBERG, AINSWORTH and GARZA, Circuit Judges.

GOLDBERG, Circuit Judge:

We are faced today with what is both substantively and procedurally a rara avis in the covey of federal cases. A Florida state court judge a man charged with upholding our nation's laws together with his bailiff and two other individuals, has been convicted of converting his office into a nest of bribery and corruption. During the trial of these men, the district judge made several unusual procedural rulings in an effort to keep the entire flock of defendants together in a single proceeding. We find that the indictment in this case was substantively sufficient to meet legal requirements and that the evidence presented was adequate to establish the government's prima facie case. We therefore deny appellants'

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request to reverse and to order dismissal of the charges. However, we hold that the procedures followed by the district court in conducting this complex and difficult litigation were inadequate to preserve appellants' constitutional rights. We therefore reverse the convictions of each defendant and remand for a new trial.


The indictment in the case at bar charges that each of nine defendants participated in "a pattern of racketeering activity" involving the "court and law enforcement system of the Third Judicial Circuit of the State of Florida," and that several of the defendants also obstructed justice and criminal investigations in an effort to cover up the racketeering activities. With a broad brush, the indictment paints a picture of unscrupulous state court judges surrounded by equally unscrupulous court employees, attorneys and citizens, all of whom engaged in the practice of buying and selling "justice." 1 In examples too numerous to recount, the indictment cites instances in which various defendants were involved in such offenses as bribery, manipulation of grand juries, protection of illegal activities, and threats against prospective witnesses. In short, the indictment alleges that instead of doing justice, one arm of the Florida court system was undoing it.

Count One of the indictment alleges that Florida judges Samuel S. Smith ("Smith") and William Arvel Drury ("Drury"), court bailiff Loy Zell Harrell ("Harrell"), public defender investigator Grover Lamar Lee ("Lee"), attorneys Terry R. McDavid ("McDavid") and Arthur K. Black ("Black"), and Florida residents William D. Riggs ("Riggs"), Harry O. Stratton ("Stratton"), and Conlon St. John Wilmott ("Wilmott"), conspired to participate in "a pattern of racketeering activity" involving Florida's Third Judicial Circuit in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d). 2 A common scenario of the racketeering

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activity alleged as part of this conspiracy was the payment of monetary bribes to Judge Smith both directly and through court employees in return for the protection of illegal activities and for favorable treatment in court. Count One also alleges a total of 72 "overt acts" in furtherance of the conspiracy. Count Two of the indictment charges Judge Smith and Bailiff Harrell with substantive violations of RICO, including soliciting and receiving bribes, and purchasing confiscated marijuana from state officials. 18 U.S.C. § 1962(c). Counts Three, Four, Five and Twelve charge Riggs with obstruction of justice for his attempt to cover up the racketeering conspiracy, and Counts Eight, Nine and Ten allege similar charges against Black, Smith and Wilmott, respectively. 18 U.S.C. § 1503. 3 Counts Six and Seven charge Smith, Drury, Black, Riggs and Stratton with obstructing criminal investigations of the racketeering activity. 18 U.S.C. § 1510. 4 Finally, Count Eleven charges

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Wilmott with bribery of public officials and witnesses." 18 U.S.C. § 201(d). 5

Although the above indictment was returned in the Middle District of Florida, the trial took place in the Eastern District of Louisiana following a change of venue granted pursuant to a motion made by some but not all defendants. Before trial, Wilmott and Black were severed from the case, and after the prosecution presented its case-in-chief, the district court granted a directed verdict of acquittal in favor of Judge Drury. The cases of the six remaining defendants were then presented to the jury.

During the presentation of his defense, Judge Smith was hospitalized due to a severe heart ailment. When it was determined that Smith might have been unavailable for trial for some time, his case was severed from that of the remaining defendants. The jury continued to hear evidence on the conspiracy and other charges, and subsequently returned verdicts with regard to each of the five remaining defendants. McDavid and Lee were acquitted. Riggs and Stratton were convicted on all counts. Harrell was convicted on Count One but acquitted on Count Two. After Judge Smith recovered from his ailment, his trial was completed before the same jury which had convicted three of his codefendants. Smith was convicted on Counts One, Two and Nine, but was acquitted on Count Six.

The four defendants who were found guilty Smith, Harrell, Riggs and Stratton brought this appeal. 6 Appellants allege numerous errors, some of which, if valid, would require reversing their convictions and dismissing various parts of the indictment, and others of which, if valid, would require reversing their convictions and remanding for new trials. We deal first with the former group of issues, and then with the latter.


Judge Smith was convicted under Count Two of violating RICO by participating in and conducting the affairs of an "enterprise engaged in, or the activities of which affect, interstate or foreign commerce," through a pattern of racketeering activity. 18 U.S.C. § 1962; see pages 1070-1071 & note 2, supra. In addition, all four appellants were convicted under Count One of conspiring to violate RICO. 7 18 U.S.C. § 1962; see pages

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1070-1071 & note 2, supra. In both counts, the "enterprise" was defined as the Third Judicial Circuit of the State of Florida. All four appellants argue that for a number of reasons the Third Judicial Circuit cannot constitute an enterprise as defined under RICO, and that the indictment is therefore insufficient as a matter of law.

Appellants first argue that Florida's Third Judicial Circuit is too broad an entity to properly constitute a RICO enterprise. Appellants suggest that the Third Judicial Circuit is simply a "geographical designation" encompassing a number of Florida state courts and law enforcement agencies. Because the government chose such a broad enterprise in the case at bar, appellants conclude that they were not adequately apprised of the charges against them. This argument mischaracterizes the indictment in the case at bar. An indictment is sufficient if (1) it contains "the elements of the offense charged and fairly informs the defendant of the charge against which he must defend," and (2) it enables the accused "to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 636, 62 L.Ed.2d 575 (1980); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); see United States v. L'Hoste, 609 F.2d 796, 800 (5th Cir.), cert. denied, -- U.S. --, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). The indictment in this case is clearly adequate under the above standard. The agreements which were part of the alleged conspiracy, the "overt acts" in furtherance of the conspiracy, and the substantive racketeering offenses are all related in great detail. With painstaking particularity, the indictment makes it clear that the alleged conspiracy and substantive offenses centered around the Third Judicial Circuit as an arm of the Florida court system, and not as a mere "geographical designation" as argued by appellants. Moreover, the indictment alleges that the offenses were all part of a single scheme to use the Third Judicial Circuit for illicit profit-making activities and to cover up these illegal activities. The indictment leaves no room for doubt regarding the charges lodged against each defendant, and offers each defendant protection against double jeopardy. Appellants' argument that the indictment is too broad to be sufficient is therefore without merit. 8

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Appellants next contend that by broadly defining the enterprise as Florida's Third Judicial Circuit, the government has improperly charged multiple conspiracies under the guise of a single conspiracy. Appellants argue that each agreement to bribe a...

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