U.S. v. Welch, 80-1044

• Citation: 656 F.2d 1039
• Decision Date: 21 September 1981
• Docket Number: No. 80-1044,80-1044
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tom WELCH, Charles Cashell, William L. Satterwhite and James M. Cochran, Defendants-Appellants. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1039

656 F.2d 1039

UNITED STATES of America, Plaintiff-Appellee, v. Tom WELCH, Charles Cashell, William L. Satterwhite and James M. Cochran, Defendants-Appellants.

No. 80-1044.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 21, 1981.

Dale Long, Tyler, Tex., for Welch.

R. L. Whitehead, Jr., Longview, Tex., for Cashell.

Charles H. Clark, Tyler, Tex., for Satterwhite.

Lynn S. Patton, Longview, Tex., for Cochran.

John H. Hannah, Jr., U. S. Atty., Herbierto Medrano, Christian Harrison, Asst. U. S. Attys., Tyler, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before WISDOM, POLITZ and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

This case involves the conviction of four defendants on charges of conspiracy to obstruct the enforcement of the criminal laws of the State of Texas with intent to facilitate an illegal gambling business in violation of 18 U.S.C.A. § 1511, and of conducting the affairs of an enterprise affecting interstate commerce through a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. § 1962(c). On appeal, defendants raise questions concerning joinder under Fed.R.Crim.P. 8(b) and 14 and sufficiency of the evidence to support the convictions on the conspiracy and the racketeering charges. In addition, they each raise a number of issues that involve whether the indictment was defective and whether the Government properly charged predicate acts sufficient to support the convictions on the racketeering count. We agree with defendant Satterwhite that the evidence as to him was insufficient to support his conviction on the racketeering count. As to Satterwhite, therefore, we reverse the RICO conviction. With respect to all charges involving the other three defendants, and with respect to Satterwhite's conviction on the conspiracy count, we affirm.

I. Facts

With respect to sufficiency of the evidence questions, "(w)e can reverse only if we conclude that a reasonable jury could not find the evidence inconsistent with all reasonable hypotheses of the defendant's innocence." United States v. Molina-Garcia, 634 F.2d 217, 218-19 (5th Cir. 1981). We must view the evidence in the light most favorable to the Government and assume that all relevant credibility choices were made in favor of the Government. Glasser v. United States, 315 U.S. 60, 79, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Marx, 635 F.2d 436, 438 (5th Cir. 1981). Although the trial of this case involved a great deal of conflicting testimony, the facts viewed in the light most favorable to the Government indicate the following:

A. Cantrell's Game

Tom Welch was elected Sheriff of Gregg County, Texas in 1972, took office on January 1, 1973, and served in that position for eight years. A large illegal gambling operation had been conducted at the Foster farm in Gregg County by Raymond Cantrell for many years prior to Welch's election. Though the evidence indicated that Welch was aware of the gambling that occurred at the Foster farm while Welch was sheriff, the Sheriff's Office never closed down the game. Shortly after Welch was elected sheriff, he was seen at the Foster farm in the company of Cantrell. County sheriff's cars were seen on the farm property a number of times during Welch's term as sheriff and, although at least one disturbance at the game was quelled by Welch's Chief Deputy James M. Cochran, Cochran did not interfere with the game. In fact, one ex-deputy testified that when Cochran arrived, he "just stated that he knew there was going to be a little game that night, and everything was okay." On one occasion, two men who had attempted to rob the game were picked up by two deputies and taken to the sheriff's home. The sheriff warned them not to disturb the game because those were the sheriff's people down there and he was running a respectable game. There was some evidence introduced at trial that the sheriff received money to protect the gambling game.

In the summer of 1978, the area in which the Foster farm was located was annexed inside the City of Longview, Texas. Cantrell decided to move his game outside the jurisdiction of the City. Cantrell eventually moved his game to a farmhouse known as the Pat Smith place. Prior to the time that he moved the location of the game, a deputy sheriff was sent to the Foster farm to deliver a message to Cantrell stating that Pat Smith (who ran a farm located outside the city limits) had been admitted to the Good Shepherd Hospital. Cantrell received the message and told the deputy to "advise Sheriff Welch that he did appreciate it." When the deputy relayed this information to the sheriff, the sheriff simply thanked him. After Cantrell moved his game to the Pat Smith place, the sheriff placed a special "vacation" patrol on the new gambling site while it was being renovated and, on occasion, the sheriff watched the progress being made on the renovation.

County Commissioner Bill Satterwhite's workmen serviced the private road leading up to the Foster farm on occasion. After Cantrell decided to change the location of the game, Satterwhite instructed his men to build a parking lot at the new casino site. The parking lot was constructed using county workmen, materials, and equipment. A few months later, the FBI raided the casino and closed it down. Satterwhite and Cantrell met with one county employee who had worked on the parking lot, Garland Grimes, and arranged for Grimes to tell the FBI that without Satterwhite's knowledge, Grimes had worked out a deal with Cantrell to build the parking lot. At trial, however, Grimes testified that he was paid by Satterwhite to work on the parking lot.

B. The Fairground Games

Once a year the Longview Jaycees Gregg County Fair and Livestock Show, sponsored by the Jaycees, comes to Gregg County. During 1977 and 1978, the concession manager was Seymour Berger Schlar. During those years, the Sheriff's Office handled the security for the midway area of the fair. ¹ Illegal gambling openly and obviously occurred on the midway at the fair. In both 1977 and 1978, Schlar paid $1,000 to Welch for protection and freedom from harassment on the midway. ² Several deputies from the Sheriff's Office patrolled the midway, guarded the illegal gambling activities, and received money from Schlar during the 1977 fair and after the 1978 fair. Justice of the Peace Charles Cashell was present on the midway at the 1978 fair on all nights, and he also received money from Schlar after the fair. All those who patrolled the midway were directed to handle any complaints with respect to gambling there at the fair, and they were apparently quite successful at discouraging people from filing formal complaints. On one occasion, for instance, when undercover FBI Agent Tom Kilmer complained to one of the deputies patrolling the midway that he had lost more than $120.00 at a booth that was allowing gambling, the deputy stated that if he were to arrest the people at the booth, he would also have to arrest Kilmer for gambling. ³ None of the gambling games at the fair were ever shut down.

C. Attempted Murder The Barn Stakeout

In early 1974, Captain Don Hale discussed with Welch the use of an informant to apprehend two suspected criminals James Edward Makarski and "Danny Boy" Aldridge. Welch agreed to the use of the informant, and it was arranged that Hale would be the informant's contact and that Cochran would be the go-between for Hale's contact with Welch. The informant, former Sheriff's Office employee Larry Burke, relayed information to Hale about the activities of Makarski and Aldridge. To help him gain the confidence of Makarski and Aldridge, Burke wanted a radio that would pick up the police frequency. He requested that Hale alter a radio for him to serve that purpose. Although Welch and Cochran approved the plan, the alteration of the radio was unsuccessful. According to Burke, he was then given several assignments by Makarski as a test of his reliability and trustworthiness. One assignment was the commission of a robbery at the Pines Motel. While there, accompanied by a girlfriend of Aldridge and Makarski, Burke killed one prostitute and severely wounded another.

Hale testified that a plan to kill Burke was subsequently devised to avoid the embarrassment that would result if it became known that the man who committed the "heinous" crime at the Pines Motel had been working for the Sheriff's Office. Hale was to give information to Burke to induce Burke, Makarski, and Aldridge to attempt to rob the safe at the County Barn. ⁴ The plan was that while the three men attempted to rob the safe, they would be killed. It would then appear that Burke was a "hero" who died accidentally while helping the Sheriff's Office apprehend two well-known criminals, and the Sheriff's Office would be saved from any embarrassment that might arise as a result of having to arrest its own informant for murder.

Welch, Hale, and Satterwhite met at the County Barn to set up the stakeout. Satterwhite arranged to bring to the Barn a safe as well as some hay to be used for cover and for the protection of the deputies. Later, on the night of the operation, Satterwhite drove three deputies to the Barn in a county dump truck. At the Barn Satterwhite showed the deputies the office where their weapons had previously been placed, and unlocked the office so the deputies would have access to the weapons. He drove away before the would-be robbers arrived. When the robbers did arrive, they discovered the deputies and escaped. ⁵

D. The Indictment

On August 3, 1979, a federal grand jury sitting in Tyler, Texas returned a six-count indictment against twelve individual defendants. Count I of the indictment alleged that six defendants (none of whom are involved in this appeal) conducted, financed, managed, supervised, directed, or owned...