U.S. v. Sutherland

• Decision Date: 25 September 1981
• Docket Number: No. 80-1422,80-1422
• Citation: 656 F.2d 1181
• Parties: 9 Fed. R. Evid. Serv. 278 UNITED STATES of America, Plaintiff-Appellee, v. Glen SUTHERLAND, Edward Maynard and Grace Walker, Defendants-Appellants. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1181

656 F.2d 1181

9 Fed. R. Evid. Serv. 278

UNITED STATES of America, Plaintiff-Appellee, v. Glen SUTHERLAND, Edward Maynard and Grace Walker Defendants-Appellants.

No. 80-1422.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 25, 1981.

Mitchell Esper, Charles Louis Robert, El Paso, Tex., for Walker.

Texas S. Ward, El Paso, Tex., for Sutherland.

Gary Joel Hill, El Paso, Tex., for Maynard.

LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before REAVLEY, RANDALL and SAM D. JOHNSON, Circuit Judges.

RANDALL, Circuit Judge:

In this case three defendants appeal their convictions for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO) in violation of 18 U.S.C. § 1962(d) (1976). The defendants raise a large number of issues, one of which involves an important RICO question: whether and when conspiracies that involve the same enterprise but are otherwise unrelated may be tried together under a single RICO conspiracy count. We consider the defendants' points on appeal seriatim and affirm their convictions.

I. THE FACTS

Glen Sutherland, Grace Walker and Edward Maynard were indicted in January 1980 for conspiracy to violate 18 U.S.C. § 1962(c) ¹ in violation of 18 U.S.C. § 1962(d). ² The indictment charged, in brief, that the three defendants "did knowingly, wilfully, and unlawfully combine, conspire, confederate, and agree together and with each other," from November 1975 until the date of the indictment, to violate section 1962(c). The conspiracy alleged by the government consisted of an agreement to associate with and to participate in the conduct of an enterprise that affects interstate commerce (the Municipal Court of the City of El Paso) through a pattern of racketeering activity (bribery of a state official in violation of state law). ³

The alleged conspiracy centers around Sutherland, who at the time of these events was a judge of the Municipal Court. According to the government, the defendants agreed that Maynard and Walker would each collect traffic tickets from his or her friends and associates, along with the amount of the statutory fine plus a small premium ($10); that Maynard and Walker would deliver the tickets to Sutherland, who would have the cases transferred to his docket and would then favorably dispose of them; and that the money collected would in each case be split between Sutherland and whichever other defendant collected and delivered the ticket.

Although the indictment frames the conspiracy as a single agreement among all three defendants, the government did not attempt at trial to prove any agreement between Walker and Maynard. As counsel for the government explained in response to an objection by the defendants to the introduction of coconspirator hearsay:

MR. BOCK: ... It's the government's position that the conspiracy in this case, the hub of it, is the judge (Sutherland), and his activities with these other coconspirators. And there is absolutely no requirement that they know each other or have knowledge of each other's activities.

THE COURT: Your theory is that it is a wheel-type conspiracy?

MR. BOCK: Yes, sir, exactly.

THE COURT: That there was no one conspiracy but a series of conspiracies?

MR. BOCK: Yes, sir.

Trial Transcript at 656-57.

This view of the government's case is consistent with the evidence presented at trial, which we discuss in more detail in Part II of this opinion. Briefly, we find the evidence sufficient to support each of two separate conspiracies, one between Walker and Sutherland and the other between Maynard and Sutherland. In each case the evidence is more than sufficient to establish an agreement to participate in the conduct of the Municipal Court through a pattern of racketeering activity. However, the government has pointed to no evidence in the record (and we have found none) that suggests that either Walker or Maynard knew or should have known of the other's similar agreement with Sutherland. The government's evidence as to these two defendants is entirely unrelated and, in fact, places the two conspiracies at different periods of time: the specific instances of bribery alleged between Walker and Sutherland all took place between 1975 and 1977, while those between Maynard and Sutherland all took place in 1979.

II. THE SUFFICIENCY OF THE EVIDENCE

All three defendants challenge the sufficiency of the evidence to support their convictions under 18 U.S.C. § 1962(d). First, each argues that the government failed to establish a "pattern of racketeering activity" since the evidence does not specifically demonstrate "at least two acts of racketeering activity," as required by 18 U.S.C. § 1961(5), supra at note 1. ⁴ Second Walker argues that the evidence does not sufficiently establish any agreement between herself and Sutherland. In considering these arguments we must read the evidence in the light most favorable to the government, and must reverse the convictions if we find that any reasonable jury thus reading the evidence must necessarily have entertained a reasonable doubt as to the defendants' guilt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Ocanas, 628 F.2d 353, 360 (5th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 2316, 68 L.Ed.2d 840 (1981).

A. The Requisite "Two Acts of Racketeering Activity"

The government proved that a number of specific traffic tickets were (1) given by traffic violators to either Walker or Maynard, and (2) favorably disposed of by Sutherland in his capacity as municipal judge. Through the testimony of Sally Kalastro (a co-worker with Walker at the time of the events in question), the government identified twenty-five individual tickets that had been accepted by Walker. Through the testimony of several persons who submitted tickets to Maynard (including several bogus tickets prepared for the purpose of the investigation), the government identified fifteen individual tickets that had been accepted by Maynard. In the case of each ticket, the government introduced evidence (primarily from Municipal Court records) to establish its favorable disposition (typically a finding of not guilty) by Sutherland.

The gist of the defendants' argument is that the governments' evidence fails to prove that any one of these specific tickets was the subject of bribery. Insofar as the government's direct evidence is concerned, this statement is correct. The government does not point to any evidence that pertains to any specific ticket and demonstrates either (1) that the ticket was delivered by Walker or Maynard to Sutherland, (2) that money was delivered by Walker or Maynard to Sutherland, or (3) that Sutherland favorably disposed of the ticket in exchange for such money. Moreover, the defendants suggest a reasonable hypothesis of innocence that is consistent with the government's direct evidence as to any one ticket: a ticket that was merely given to Walker or Maynard and later favorably disposed of by Sutherland might have been successfully defended by an attorney retained by Walker or Maynard.

The fault in the defendants' argument is that it ignores the importance of the overwhelming circumstantial evidence introduced by the government. The government's case begins with evidence that pertains both to the Walker-Sutherland and to the Maynard-Sutherland conspiracies. This evidence establishes, in brief, that the individual tickets at issue were not processed through normal Municipal Court procedures. Only five of the forty tickets were processed through the Traffic Violations Bureau, which ordinarily assigns individual cases to the various judges, and only four of the tickets had complaints drawn up on them, although a complaint is ordinarily prepared in each case that is heard by a judge. Moreover, the government introduced the testimony of two Municipal Court clerks to the effect that Sutherland regularly appeared in court with the violators' copies of traffic citations and directed the clerks irregularly to process those tickets. These clerks also testified that they were instructed by Sutherland not to discuss these irregular practices in public; that Sutherland paid the clerks for the extra work required by such practices; and that Sutherland ceased the irregular procedures when he discovered he was under investigation.

The government also introduced substantial circumstantial evidence with regard to each separate conspiracy. The government's case as to the Walker-Sutherland conspiracy rested chiefly on the testimony of Sally Kalastro. She testified that beginning in 1975 Sutherland would meet Walker in her office once or twice each week. On one such occasion in late 1975, Kalastro interrupted the meeting and observed Sutherland taking a stack of traffic citations (the violators' copies), along with a stack of money, from Walker. Kalastro testified that after Sutherland left the office, Walker chastised her for the interruption but confessed to the ticket-fixing scheme and explained to Kalastro how it operated.

The government's case as to the Maynard-Sutherland conspiracy rested chiefly on testimony concerning a series of meetings in which persons cooperating with the F.B.I. in mid-1979 sought help from Maynard with their traffic tickets (some of which were written for the purpose of the investigation). In each instance, Maynard appeared to call someone to ask the cost of taking care of a ticket; although he did not refer to Sutherland by name during the phone conversations, he referred to his contact as "the Honorable" and indicated that the contact was the only judge handling night court, which was in fact Sutherland's assignment. Moreover, Maynard referred to his activities as "fixing" or "taking care of" the citations, and insisted on payment in cash. The evidence suggests that on at least one...