U.S. v. Yarbrough

• Decision Date: 08 April 1988
• Docket Number: Nos. 86-3024,86-3026,86-3025,86-3027,s. 86-3024
• Citation: 852 F.2d 1522
• Parties: 26 Fed. R. Evid. Serv. 334 UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee YARBROUGH, Andrew Virgil Barnhill, Richard H. Kemp, Ardie McBrearty, Randolph George Duey, David Eden Lane, Bruce Carroll Pierce, Jean Margaret Craig, Frank Lee Silva, Randall Paul Evans, Defendants-Appellants. * , 86-3028, 86-3029, 86-3030, 86- 3033, 86-3034 and 86-3035.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1522

852 F.2d 1522

26 Fed. R. Evid. Serv. 334

UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee YARBROUGH, Andrew Virgil Barnhill, Richard H. Kemp Ardie McBrearty, Randolph George Duey, David Eden Lane Bruce Carroll Pierce, Jean Margaret Craig, Frank Lee Silva Randall Paul Evans, Defendants-Appellants.

Nos. 86-3024, 86-3025, 86-3026, 86-3027 ^*,

86-3028, 86-3029, 86-3030, 86- 3033, 86-3034 and 86-3035.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 8, 1988.

Submitted on Briefs April 8, 1988 ^*.

Decided July 6, 1988.

Michael G. Parham, Ellijay, Ga., for defendant/appellant Ardie mCbrearty.

Michael P. Ruark, Breskin & Robbins, Seattle, Wash., for defendant/appellant Bruce Carroll Pierce.

David R. Chappel, Bellevue, Wash., for defendant/appellant Jean Margaret Craig.

Brian Phillips, Everett, Wash., for defendant/appellant David Eden Lane.

Anthony Savage, Seattle, Wash., for defendant/appellant Andrew Virgil Barnhill.

Jeffrey M. Evans, Reno, Nev., for defendant/appellant Randall Paul Evans.

Frederick D. Leatherman, Jr., Seattle, Wash., for defendant/appellant Randolph George Duey.

James L. Vonasch, Seattle, Wash., for defendant/appellant Gary Lee Yarbrough.

Steve Paul Moen, Shafer, Moen & Bryan, Seattle, Wash., for defendant/appellant Richard H. Kemp.

James A. Trujillo, Trujillo, Peick & Smith, Bellevue, Wash., for defendant/appellant Frank Lee Silva.

David E. Wilson, Asst. U.S. Atty., Seattle, Wash., Susan L. Barnes, Asst. U.S. Atty., Seattle, Wash., Peter O. Mueller, Asst. U.S. Atty., Seattle, Wash., Robert D. Ward, Sp. Asst. U.S. Atty., San Francisco, Cal., and Ronald Howen, Sp. Asst. U.S. Atty., Boise, Idaho, for plaintiff/appellee.

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

Before BEEZER, HALL and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

The appellants were convicted of violating the federal racketeering laws (RICO) and conspiring to violate those laws. 18 U.S.C. Sec. 1962(c) & (d). On the RICO counts, all the appellants were sentenced to maximum twenty-year sentences for both the substantive and conspiracy convictions. These sentences are to run consecutively. Most of the appellants were also convicted of various other offenses including: armed robbery of armored cars and banks, 18 U.S.C. Sec. 1951 (Hobbs Act), transporting stolen property across state lines, 18 U.S.C. Sec. 2314, harboring fugitives, 18 U.S.C. Sec. 1071, and various federal firearms offenses, 26 U.S.C. Secs. 5861(d) & 5871. Most of the sentences for these crimes are to run consecutively. The appellants timely appealed alleging numerous errors. We AFFIRM.

I. FACTS AND PROCEEDINGS BELOW

All the appellants were members of a radical right-wing, white-supremacist group known as the "Order" or the "Bruders Schweigen" (Silent Brothers). Over one hundred witnesses, including many members of the Order named in the indictment who had pled guilty, testified at trial. Their testimony established the following facts. In the fall of 1983, Robert Matthews conceived the idea of the Order. Matthews was convinced that the United States needed to be saved from the "perverting influence" of non-white, non-Christian people. He determined to create a group dedicated to overthrowing the United States government that he perceived to be dominated by Jews. He gathered together a group of like-minded individuals to The appellants decided that the "right-wing" struggle needed a group dedicated to direct action. Recognizing that the "struggle" required money, on October 28, 1983, the group engaged in its first crime--the armed robbery of an adult book store in Spokane, Washington. The robbery yielded little so the appellants tried other, presumably more lucrative, schemes. They engaged in counterfeiting, but on the arrest of Pierce for passing fake bills, they abandoned this idea. The appellants then decided to try their hand at armored car robbery.

establish the organization. This group included appellants Lane, Pierce, Duey and Kemp, among others. Each member had previously associated himself with various right-wing radical organizations such as the Ku Klux Klan, the National Alliance (a neo-Nazi organization), and the "Christian Identity" movement (a "Christian" group with extreme racist and anti-Semitic views).

In November, 1983, Matthews, Pierce, and Duey, among others, went to Seattle from Idaho to carry out such a robbery. The group meticulously planned the crime and their escape, but delayed execution of the robbery until March, 1984. In the interim, Matthews, Pierce, and Yarbrough robbed several banks to raise money for the Order. On March 16, 1984, Matthews, Pierce and Duey carried out their earlier plan to rob the armored car. They obtained $39,000 in that robbery. In April, 1984, Matthews, Pierce, Yarbrough, Duey, Kemp and Barnhill robbed the same armored car route and courier in Seattle. This time they obtained approximately $235,000 in cash and $300,000 in checks.

Matthews then came in contact with a sympathetic employee of the Brinks Armored Car Company. The contact supplied the Order with inside information about the routes, crews, and cargoes of Brinks armored car routes. Based on this information, on July 19, 1984, appellants Matthews, Pierce, Yarbrough, Duey, Barnhill, Kemp and Evans robbed Brinks' Ukiah, California armored car run. The robbery netted approximately $3,600,000 in cash. The participants in the robbery received as "salary" and "bonuses" $40,000 for their part in the crime. The rest of the money went into the coffers of the Order. Some of the money was "donated" to other right-wing groups.

During this time period, members of the Order also murdered two people. In May, 1984, Richard West, a potential member of the group, was murdered because he was believed to be a government agent. On June 18, 1984, a member of the group murdered Alan Berg, a Denver radio talk show host. Berg, a Jew, was an outspoken critic of right-wing groups in general and racist and anti-Semitic groups in particular. On his radio program, Berg had criticized several right-wing, racist organizations of which present or future members of the Order belonged. The Order decided that Berg should be killed for his criticism of the groups and to make a "statement" by killing a prominent Jewish person. Berg was machine-gunned by Pierce when stepping from his car to his driveway in front of his Denver home.

In October, 1984, law enforcement agencies began to close in on the Order. The group split up to avoid apprehension. On November 24, 1984, Yarbrough and Matthews were cornered in a Portland motel. Yarbrough was captured, but Matthews, though wounded, managed to escape. With the help of several members of the Order, he moved to Whidbey Island, Washington. On December 7, 1984, federal and state law enforcement agents tracked Matthews and other members of the group to the Island. Matthews burned to death when the house he occupied caught fire during a gun battle between himself and the agents. During the next several months, the rest of the appellants were captured.

The government indicted 23 defendants under the counts outlined above. Twelve pled guilty before trial. The jury found all the appellants guilty of the substantive RICO count and the conspiracy RICO count. Many of the defendants were also found guilty of the other substantive federal crimes.

The appellants allege numerous errors by the trial court requiring reversal or resentencing. We now set forth each of the appellants' arguments.

A. Pretrial Errors.

1. Appellants Kemp, Duey and Pierce argue that it was error for the trial court to deny their motion to strike allegations of the West murder charged in Count I of the indictment. These appellants argue that the murder allegations deprived them of their right to testify in their own defense because their testimony might later be used against them in state court homicide prosecutions.

2. Appellant Craig argues that Count I of the indictment was duplicitous.

3. Appellants Silva, Evans and McBrearty claim error in the trial court's denial of their motions for severance.

4. Appellant McBrearty claims that he was denied access to jury records in violation of 28 U.S.C. Sec. 1867(f).

5. Appellant Barnhill alleges error in the trial court's denial of his motion to suppress evidence seized from his house and a storage locker.

6. Appellant Lane claims error in the trial court's denial of his motion to suppress evidence seized in his habitation.

B. Trial Errors.

1. Appellants Yarbrough, Kemp, Duey, Pierce, Lane and Silva argue that coconspirator statements admitted at trial failed to meet the requirements of Fed.R.Evid. 801(d)(2)(E) as not "in furtherance" of a conspiracy. They also argue that their admission violated the confrontation clause of the sixth amendment.

2. Appellants Yarbrough, Kemp, Duey, Lane and Silva argue that admission of a codefendant's confession violated the "Bruton" rule.

3. Appellant McBrearty claims he was denied due process by the testimony of a coconspirator testifying pursuant to a plea agreement.

4. Appellant McBrearty claims he was denied due process because the prosecutor engaged in misconduct by improperly indicating his personal belief in the appellant's guilt.

5. Appellant Yarbrough argues that it was error for the trial court to deny his motion for a mistrial after several witnesses alluded to his prior incarceration.

6. Appellants Duey and Pierce allege there was insufficient evidence to convict them of conspiracy to rob an armored car.

7. Appellants Silva and Duey allege there was insufficient evidence to convict them of harboring a fugitive.

8. Appellant Evans claims there was insufficient evidence adduced at trial to prove that a pattern of racketeering activity was the means "through" which he participated in the RICO enterprise.

9. Appellant Evans claims that the judge's final RICO instructions to...