729 F.2d 615 (9th Cir. 1984), 82-1757, United States v. Tille

Docket Nº:82-1757, 82-1758.
Citation:729 F.2d 615
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donald TILLE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond William BURROWS, Jr., Defendant-Appellant.
Case Date:March 29, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 615

729 F.2d 615 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald TILLE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond William BURROWS, Jr., Defendant-Appellant.

Nos. 82-1757, 82-1758.

United States Court of Appeals, Ninth Circuit

March 29, 1984

Argued and Submitted Feb. 6, 1984.

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Eugene Wilson, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

James Vonasch, Seattle, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT and HUG, Circuit Judges, and SCHWARZER, [*] District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Appellants challenge their convictions of conspiracy to violate federal anti-racketeering law. They contend that the court erred in (1) allowing Burrows' trial on an insufficient indictment and conviction on insufficient evidence, (2) admitting into evidence various coconspirator statements, (3) admitting evidence of Tille's flight, (4) not severing Tille's trial from his codefendants', and (5) instructing the jury on conspiracy.

Tille (a/k/a/ Bob Cannon) and Burrows were indicted along with two others (Satiacum and Taylor) under the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. Secs. 1961-68. The indictment charged appellants with conspiracy to violate anti-racketeering law, by being associated with a racketeering enterprise and participating in the conduct of its affairs through a pattern of racketeering activity. 18 U.S.C. Sec. 1962(c), (d).

The racketeering enterprise was a sole proprietorship owned and controlled by Robert Satiacum, known as Satiacum Enterprises. Satiacum Enterprises owned or operated, in whole or in part, many businesses, mostly within the Western District of Washington.

The conspiracy allegedly continued from 1975 to June 15, 1982. Its purpose was to obtain benefits for the defendants and the enterprise by threats and acts involving murder, arson, bribery of police officials, illegal trafficking in cigarettes, and illegal gambling. The acts of racketeering through which appellants allegedly participated in the conspiracy were these: by Burrows, involvement in illegal gambling in 1975, an agreement to commit arson, and the attempted murder of Ramona Bennett in 1978; by Tille, the 1978 attempted murder of Bennett, arson, and conducting a racketeering enterprise.

The indictment charged other crimes also, including 42 counts of illegal cigarette trafficking against Satiacum. Burrows was charged only with conspiracy to participate in the conduct of a racketeering enterprise. Tille was indicted for conspiracy, racketeering, and arson, but was acquitted of racketeering and the arson charge was dismissed.

In June 1982, local police in Gillette, Wyoming approached a residence with an arrest warrant for Tille, pursuant to the indictment filed in the Western District of Washington. While two officers spoke with two men there, a third officer saw Tille attempt to flee. The third officer found Tille hiding and asked if he were the person sought by the other officers. Tille said he was. Tille was carrying a card with the handwritten name, address, and phone number of a Seattle criminal defense lawyer.

Laviola, a former Satiacum Enterprises employee, was a prime government witness at the jury trial. He cooperated in exchange for leniency on another charge and a grant of immunity. He secretly taped conversations with Satiacum and with Burrows, and the edited tapes were presented at trial.

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Taylor entered into a plea agreement, pleading guilty to arson and testifying at trial for the government. Satiacum was convicted on all charges against him, but fled after verdict and before sentencing. Tille and Burrows each were convicted only of conspiracy to participate in the conduct of the affairs of a racketeering enterprise. Tille was sentenced to 20 years imprisonment, Burrows to 10 years.

I. PREDICATE CRIMES AND RICO CONSPIRACY

RICO makes it unlawful, among other things, for a person associated with an enterprise engaged in interstate commerce to "participate ... in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. Sec. 1962(c). A "pattern of racketeering activity" is defined as at least two acts of racketeering activity, as defined in section 1961(1), within ten years. 18 U.S.C. Sec. 1961(5). RICO also makes it unlawful for a person "to conspire to violate any of the provisions of subsections (a), (b), or (c) of [section 1962]." 18 U.S.C. Sec. 1962(d).

Burrows contends that the conspiracy charge in the indictment was deficient in failing to charge him with having conspired to commit two predicate acts of racketeering. He also contends that there was no substantial evidence that he agreed to commit two predicate offenses.

The issue presented is whether section 1962(d) of RICO requires proof that a defendant agreed to commit personally two predicate offenses. Several circuits have held or assumed that a defendant's personal participation, by act or agreement, in the predicate offenses is required. United States v. Winter, 663 F.2d 1120, 1136 (1st Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 1249, 1250, 75 L.Ed.2d 479 (1983); United States v. Martino, 648 F.2d 367, 394-96, 400 (5th Cir.1981), cert. denied, 456 U.S. 943, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982); United States v. Melton, 689 F.2d 679, 683 (7th Cir.1982); United States v. Zemek, 634 F.2d 1159, 1172 n. 17 (9th Cir.1980), cert. denied, 450 U.S. 916, 985, 101 S.Ct. 1359, 1525, 67 L.Ed.2d 341, 821, 452 U.S. 905, 101 S.Ct. 3031, 69 L.Ed.2d 406 (1981) (dictum, evidence showed defendant agreed to commit several predicate offenses).

The statutory language, however, does not require proof that a defendant participated personally, or agreed to participate personally, in two predicate offenses. Read in context, section 1962(d) makes it unlawful to conspire to conduct or participate in the conduct of an enterprise's affairs, where its affairs are conducted through a pattern of racketeering activity.

The issue presented here is thoroughly discussed in the recent decision in United States v. Carter, 721 F.2d 1514, 1528-32 (11th Cir.1984). As the court there observed, Congress in enacting RICO expanded traditional conspiracy law by specifying a new objective from which the unlawfulness of a conspiracy may be established: violation of a substantive provision of RICO. Id. at 1530. See also United States v. Elliott, 571 F.2d 880, 900-05 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978); 1 United States v. Sutherland, 656 F.2d 1181, 1192 n. 7 (5th Cir.1981).

Proof of an agreement the objective of which is a substantive violation of RICO (such as conducting the affairs of an enterprise through a pattern of racketeering) is sufficient to establish a violation of section 1962(d). It is only when proof of such an objective is lacking that the evidence must establish the defendant's participation or agreement to participate in two predicate offenses.

We agree with the Eleventh Circuit's analysis and adopt it here. Burrows' contention must be rejected.

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Burrows argues also that the evidence was insufficient to show his association with a RICO enterprise. He contends that there must be proof of actual employment or association independent of racketeering activity. That contention is inconsistent with United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), which held that RICO applies to wholly unlawful enterprises. An enterprise comprises "persons associated together for a common purpose of engaging in a course of conduct." Id. at 583, 101 S.Ct. at 2528. Proof of defendant's association with the illegal activities of the enterprise is all that is required. Associated outsiders who participate in a racketeering enterprise's affairs fall within RICO's strictures. United States v. Starnes, 644 F.2d 673, 679 (7th Cir.), cert. denied, 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 101 (1981); United States v. Elliott, 571 F.2d at 903.

II. COCONSPIRATORS' STATEMENTS

A. Tape Recordings

Tille challenges the admissibility of tapes made by Laviola in cooperation with the government. One is of a conversation between Laviola and Satiacum in December 1981, the other of a conversation between Laviola and Burrows in February 1982.

The tapes were admitted as statements "by a coconspirator ... during the course of and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). The finding that the statements were in furtherance of the conspiracy will not be disturbed unless the judge could not reasonably have come to that conclusion. United States v. Whitten, 706 F.2d 1000, 1018 (9th Cir.1983).

Statements made by coconspirators after the end of a conspiracy cannot be in furtherance of its objects. United States v. Miller, 676 F.2d 359, 364 (9th Cir.), cert. denied, --- U.S. ----, ----, 103 S.Ct. 126, 145, 74 L.Ed.2d 109, 123 (1982). The indictment charged that the conspiracy continued until June 1982. There was evidence that it was in existence in April 1982. Tille points to no evidence that he had withdrawn from the conspiracy, no disavowal or affirmative act contrary to its purposes. See United States v. Smith, 623 F.2d 627, 631 (9th Cir.1980). Sufficient evidence was presented to raise a reasonable inference of existence of the conspiracy at the time of the statements. See United States v. Layton, 720 F.2d 548, 555 (9th Cir.1983).

Statements are in furtherance of the conspiracy if they are intended to further its...

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