695 F.2d 765 (3rd Cir. 1982), 82-5063, United States v. Dickens
|Docket Nº:||82-5063 to 82-5079.|
|Citation:||695 F.2d 765|
|Party Name:||UNITED STATES of America v. DICKENS, Albert, Appellant. UNITED STATES of America v. PITTMAN, Fred, Jr., Appellant. UNITED STATES of America v. WASHINGTON, James, Appellant. UNITED STATES of America v. PERSONS, Lonnie, Appellant. UNITED STATES of America v. UPSHAW, Dewey, Appellant. UNITED STATES of America v. COOPER, Robert, Robert Cooper, a/k/a Mu|
|Case Date:||December 15, 1982|
|Court:||United States Courts of Appeals, Court of Appeals for the Third Circuit|
Argued Oct. 18, 1982.
As Amended Jan. 27, 1983.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Theodore V. Wells, Jr. (argued), Lowenstein Sandler Brochin Kohl, Fisher & Boylan, Roseland, N.J., for appellant Albert Dickens; Lance Cassak, Deanne Plank, Roseland, N.J., on brief.
Daniel A. Williamson, Thomas & Williamson, P.C., Elizabeth, N.J., for appellant Fred Pittman, Jr.
Albert S. Pannullo, Bloomfield, N.J., for appellant James Washington.
Sandra D. Helbig, West Orange, N.J., for appellant Lonnie Persons.
William C. Brummell, Brantley & Brummell, East Orange, N.J., for appellant Dewey Upshaw.
Louis L. D'Arminio, Breslin, Herten & Le Pore, Hackensack, N.J., for appellant Robert Cooper, a/k/a Mubarak Rai Ali.
Peter S. Valentine, Schutzman & Valentine, Irvington, N.J., for appellant Keith Monroe.
Peter R. Sarasohn, Ravin & Kesselhaut, West Orange, N.J., for appellant Alvin Conerly, also known as Hijr.
Craig V. O'Connor (argued), O'Connor & Blauvelt, Morristown, N.J., for appellant Willie Lee Lawson, a/k/a Acqueel.
Melvin D. Lusane, Newark, N.J., for appellant Ahmed Muhammad, a/k/a Claude Grey.
James Jude Plaia, Montclair, N.J., for appellant Raymond Skinner, also known as Rafeeq.
John P. McDonald, McDonald & Rogers, Somerville, N.J., for appellant Walton Earl Thompson.
James J. McDonald, Bannon, Rawding, Nutly & McDonald, Verona, N.J., for appellant James Clark.
Jill S. Slattery (argued), Nardino & Slattery, Montclair, N.J., for appellant James Brunson.
Anthony Benevento, Fontanella & Benevento, Totowa, N.J., for appellant Sheldon Kreps.
Stephen J. Edelstein, Craig & Edelstein, P.A., West Caldwell, N.J., for appellant Rosco Moses.
Steven Menaker, Miller & Menaker, Jersey City, N.J., for appellant Ronald Dickens.
Samuel Rosenthal (argued), First Asst. U.S. Atty., Newark, N.J., for appellee.
Before WEIS, BECKER and VAN DUSEN, Circuit Judges.
VAN DUSEN, Senior Circuit Judge.
In November of 1981 a jury convicted all 17 defendants of numerous violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1961-1968 (1976 & Supp. IV 1980). In this appeal, defendants challenge their convictions and claim that the Government drafted and prosecuted the indictment in a manner calculated to "chill" their First Amendment rights. They also contend that the district court erred in failing to question each prospective juror concerning his attitude toward Black Muslims and brutal murders of law enforcement officers, in failing to instruct the jury that the defendants' race and religion were irrelevant and impermissible factors to consider during jury deliberations, and in failing to compel each of their lawyers to participate in the trial, even though the defendants had specifically directed their lawyers to do nothing. Several defendants have also raised issues pertaining only to them. After careful review of the record in light of applicable law, we affirm.
An indictment, returned by a federal grand jury in New Jersey and consisting of 19 counts, charged defendants with a concatenation of 17 robberies committed in violation of the RICO statute to finance the purposes and aims of the "New World," a religious organization characterized by its members as a continuation of the Black Muslims. 1 The first count of the indictment charged defendants with conspiracy to violate the RICO statute; the second count, a substantive violation thereof. 2 Counts 3, 5, 7, 9, 11, 13, 15 and 17 charged the defendants with bank robbery. 3 Counts 4, 6, 8, 10, 12, 14, 16 and 18 charged them with placing the lives of bank employees and customers in jeopardy by using guns. 4
After the court denied several pre-trial motions, 5 defendants Upshaw and Albert
Dickens, through counsel, stated that thereafter they would not participate in the proceedings. Dickens requested permission to remain in his cell and to allow his lawyer to observe the trial (N.T. 137a). 6 Each of the other defendants joined in Dickens' request (N.T. 140a-205a). The district court carefully questioned each defendant concerning his understanding of the consequences of such a decision. 7
Trial commenced on October 28, 1981. The district court, after examining each defendant again to determine if he still wished to waive his right to participate
actively in the trial, advised each one that he could change his mind at any time. All of the defendants declined to do so (N.T. 15-32). The district court then found that the defendants had made a knowing, intelligent and voluntary waiver of their rights (N.T. 32). 8
Thereafter the jury heard testimony from 54 Government witnesses, who testified to the following scheme: From his cell in Rahway State Prison, defendant Albert Dickens assumed leadership as "lord" of the New World of Islam (N.T. 271-75, 690, 708-90, 982-83). Assisted by defendant Monroe, he recruited other inmates to commit armed robberies or "missions." Participants received a small share or "blessings," of the stolen money or "gold," which they pooled to finance the purchase of land in South Carolina, where they intended to establish a separatist community. The New World organized its members within a paramilitary hierarchy, which consisted of ranks ranging from "general," "major," "minister," and "captain" to "lieutenant" and "soldier" (N.T. 796).
The robberies or "missions" followed a general pattern consisting of one or more persons who guarded the door, others who jumped the bank counter for the "gold" and another who drove the getaway vehicle, usually abandoned for a switch car where the participants changed clothing (N.T. 431-32, 677-80, 703-07, 734). Following two rehearsal robberies at Cooper's Liquor Store and Smitty's Bar, the New World conducted at least 12 armed robberies within the next seven months. 9 During the heist at the Howard Savings Bank in Newark in November of 1980, an exchange of gunfire felled police officer John Gottfried. Defendant Lawson kicked and shot the mortally wounded Gottfried three or four more times while the officer lay on the floor of the bank. Then Lawson took Gottfried's gun and shot him again (N.T. 780-81).
On November 5, 1981, after hearing six days of testimony, the jury returned a verdict of guilty against all defendants on all remaining counts. 10 From the judgments of conviction defendants appeal.
The First Amendment Claim
Defendants contend that the district court erred in refusing to dismiss the indictment or, alternatively, to direct the Government to redact Counts 1 and 2, which alleged that the defendants' criminal enterprise operated within the framework of the New World. According to defendants, the indictment's repeated references to the New World religious organization impermissibly "chilled" and infringed upon their First Amendment rights and, in effect, placed their unpopular religious beliefs on trial. The drafting of the indictment and the presentation of the prosecution forced defendants to choose between participation in the trial on one hand and preservation of their First Amendment rights on the other, defendants argue, even though the Government could have used a less restrictive alternative by phrasing the RICO enterprise as a group of individuals who had associated for the purpose of committing robberies.
The First Amendment, which guarantees individuals freedom of conscience and prohibits governmental interference with religious beliefs, does not shield from government scrutiny practices which imperil public safety, peace or order. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637 (1890). 11 For example, in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), the Supreme Court, denying Mormons exemption from anti-bigamy laws, held that overtly criminal conduct could not be justified as religious practices. See also United States v. Starks, 515 F.2d 112, 124 (3d Cir.1975), aff'd in relevant part sub nom. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (no exception in Hobbs Act to...
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