844 F.2d 1347 (8th Cir. 1988), 85-1590, United States v. Leisure

Docket Nº:85-1590, 85-1595, 85-1596, 85-1607 and 85-1774.
Citation:844 F.2d 1347
Party Name:UNITED STATES of America, Appellee, v. Anthony J. LEISURE, Appellant. UNITED STATES of America, Appellee, v. Charles M. LOEWE, Appellant. UNITED STATES of America, Appellee, v. David R. LEISURE, Appellant. UNITED STATES of America, Appellee, v. Paul John LEISURE, a/k/a John Paul Leisure, Appellant. UNITED STATES of America, Appellee, v. Steven T. W
Case Date:April 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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844 F.2d 1347 (8th Cir. 1988)

UNITED STATES of America, Appellee,


Anthony J. LEISURE, Appellant.

UNITED STATES of America, Appellee,


Charles M. LOEWE, Appellant.

UNITED STATES of America, Appellee,


David R. LEISURE, Appellant.

UNITED STATES of America, Appellee,


Paul John LEISURE, a/k/a John Paul Leisure, Appellant.

UNITED STATES of America, Appellee,


Steven T. WOUGAMON, Appellant.

Nos. 85-1590, 85-1595, 85-1596, 85-1607 and 85-1774.

United States Court of Appeals, Eighth Circuit

April 25, 1988

Submitted Nov. 10, 1987.

Rehearing and Rehearing En Banc Denied in No. 85-1774 June 10, 1988.

Rehearing and Rehearing En Banc Denied in Nos. 85-1590,

85-1595, 85-1596, 85-1607 July 8, 1988.

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Richard H. Sindel, Clayton, Mo., for Anthony J. Leisure.

Robert H. Rice, Belleville, Ill., for Charles M. Loewe.

Irl Baris, St. Louis, Mo., for Paul John Leisure.

David Godfrey, Clayton, Mo., for Wougamon.

James Crowe, Asst. U.S. Atty., St. Louis, Mo., for U.S.

Before McMILLIAN, Circuit Judge, ROSS, Senior Circuit Judge, and BOWMAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Anthony J. Leisure (No. 85-1590), Charles M. Loewe (No. 85-1595), David R. Leisure (No. 85-1596), Paul John Leisure (No. 85-1607), and Steven T. Wougamon (No. 85-1774) appeal from a final judgment entered in the District Court 1 for the Eastern District of Missouri upon jury verdicts finding them guilty of various racketeering, obstruction of justice, and unauthorized creation of destructive devices offenses. The superseding indictment in Count I charged all five appellants with violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(c). All five appellants were charged in Count II with RICO conspiracy violations under 18 U.S.C. Sec. 1962(d). Count III charged all of the appellants except Loewe with obstructing justice in violation of 18 U.S.C. Sec. 1510 (1982). 2 Wougamon was charged individually in Count IV with a separate obstruction of justice count under 18 U.S.C. Sec. 1510. Count V charged Paul and Anthony Leisure and one other person with making a destructive device without authorization from the Secretary of the Treasury in violation of 26 U.S.C. Secs. 5861(f), 5871. Anthony and David Leisure along with two other persons were similarly charged in Count VI with unlawfully making a destructive device in violation of 26 U.S.C. Secs. 5861(f), 5871.

Following thirty-four days of trial and twelve days of jury deliberations, the jury found Paul and David Leisure and Wougamon guilty on all four counts in which each was charged. Anthony Leisure was convicted on Counts I and II, but the jury was unable to reach a verdict as to him on Counts III, V, and VI. The jury found Loewe guilty on Counts I and II and not guilty on Count III. 3 Appellants received aggregate sentences ranging from thirty-six to fifty-five years. 4

For reversal, appellants Anthony Leisure, Charles Loewe, David Leisure, and Paul Leisure collectively assert nine points of error: (1) the denial of their motion to suppress tape-recorded conversations obtained through electronic surveillance, (2) prosecutorial misconduct, (3) the restricted cross-examination of certain government witnesses, (4) the failure to take corrective action as to alleged violations by the

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government of the Jencks Act, (5) the admission of statements of co-conspirators under Fed.R.Evid. 801(d)(2)(E), (6) the failure to grant a mistrial due to mention by the government to the jury that David Leisure had been indicted on state murder charges, (7) the cross-examination of a defense witness without proper foundation, (8) the failure of proof as to the element of an "enterprise" in the RICO counts, and (9) the sufficiency of the evidence to support the obstruction of justice convictions under Count III. Appellant Wougamon separately presses four points for reversal: (1) the amendment by jury instruction of Count IV of the indictment, (2) the failure of the indictment as amended to allege a RICO violation, (3) the sufficiency of the evidence to support his RICO conspiracy conviction, and (4) the denial of his motion for a new trial based upon a newly discovered witness. For the reasons discussed below, we affirm all convictions of Anthony Leisure, Charles Loewe, David Leisure, and Paul Leisure. We affirm the convictions of Steven Wougamon as to Counts II and III, reverse the convictions of Wougamon as to Counts I and IV, vacate his sentences on Counts II and III, and remand to the district court for resentencing.

I. Background

The facts of this case are vaguely reminiscent of a Mario Puzo novel, and concern the attempts of Paul Leisure and his associates to dominate two labor unions and criminal underworld of St. Louis, Missouri. The tale begins in 1964, when Paul Leisure and his brother, Anthony Leisure, were associated with James Michaels, Sr., the head of the Syrian organized crime family in St. Louis. During this time, Richard Leisure, the cousin of Paul and Anthony, and older brother of David Leisure, was shot to death in an East St. Louis, Illinois, tavern by Norman Peters, who was accompanied by Jack Issa. Both men were associates of James Michaels, Sr. The identity of the killers was kept from Paul and Anthony Leisure, however, because Michaels, Sr. was able to persuade the tavern owner to recant his identification of Peters and Issa.

In 1968 the Leisures became aware of the coverup, and aligned themselves with the Italian organized crime family in St. Louis headed by Anthony Giordano. In a loose alliance between the Syrians and Italians, Giordano and Michaels, Sr. together formed the hierarchy of Local 110 of the Laborers' International Union of North America, which has jurisdiction over the St. Louis metropolitan area. In view of this relationship, the Leisures did not seek retaliation against Michaels, Sr. due to fear of disapproval by Giordano.

In the early 1970's, the Leisures began to establish a power base of their own. Paul left his association with Giordano and, together with his brother Anthony, their cousin David Leisure, and Fred Prater, founded LN & P Tire Service, a towing business. Anthony Leisure became a business agent for Local 110. The Leisures' fortunes continued to rise when in 1977 Raymond Massud, the longtime business manager of Local 110, passed away. Although Raymond's son, John Massud, succeeded his father as the new business manager, Anthony Leisure assumed the title of assistant business manager, with the understanding that he would exercise the power of business manager and control the union. During this time, Charles "Obie" Loewe was employed at LN & P, and Joe Broderick, a former truck driver and noted street fighter, joined Local 110 as Anthony's assistant.

From 1978 until the first part of 1980, a power struggle took place over the leadership of Laborers' Local 110 and Local 42, a second Laborers' Local in the St. Louis area. Apart from Broderick's appointment to the union, Anthony Leisure did not believe that he had been accorded the powers over Local 110 that had been promised him. Tension grew when Michaels, Sr. and Giordano arranged for two of Giordano's nephews, Vince Giordano and Matthew "Mike" Trupiano, Jr., to enter the union as officers. Michaels, Sr.'s brother, Francis Michaels, and his grandson, James Michaels, III, were also added to the union's management in early 1980. The threat to the Leisures' position in the union came to a

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head when Giordano and Michaels, Sr. insisted that Broderick be fired because they felt that the union's management positions should only be held by "family" members.

During the same time, Giordano attempted to increase his leverage in Laborers' Local 42 through the sponsorship of an associate, John Paul Spica, for membership in the union as a prelude to obtaining a management position. Raymond Flynn, a future associate of Paul Leisure, at that time controlled Local 42 and resisted the appointment of Spica. Flynn apparently felt threatened by Spica's appointment, and the two men engaged in a heated argument during the first week of November 1979. On November 9, 1979, Spica was murdered when a bomb destroyed his car.

The Leisures decided upon a similar course of action to protect their position in Local 110 following the death in June 1980, of Anthony Giordano. When John Vitale, former assistant to Giordano, succeeded to control of the Giordano family, the Leisures apparently felt that they had less to fear from the Italians. The death of Giordano altered the balance of power, and left the Leisures free to use force in their pursuit of dominating the unions. After some debate as to who among the opposition at Local 110 should be killed, the Leisures decided that Michaels, Sr. himself was the best target. Initially they decided to shoot Michaels, Sr. with shotguns at his favorite breakfast restaurant, but ultimately agreed that a car bombing would be preferable.

On September 17, 1980, Michaels, Sr. was killed when a bomb near the front end of his Chrysler Cordoba was detonated by remote control as he drove south on Interstate 55 in St. Louis County. Paul, Anthony, and David Leisure, Fred Prater, Charles Loewe, Joe Broderick, and a new addition to the Leisure group, John Ramo, all played various roles in the murder.

After the death of Michaels, Sr., the Leisures were able to remove Michaels, III from Local 110 in October 1980, and Raymond Flynn admitted Paul Leisure to the management of Local 42 in order to "call the shots" in April 1981. The Leisures were fearful that the Michaels group might retaliate, however, and Paul Leisure began to start his car from afar by remote control. At one point Paul discussed preventing retaliation by killing all of...

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