U.S. v. Flynn

• Citation: 87 F.3d 996
• Decision Date: 01 July 1996
• Docket Number: No. 95-3001,95-3001
• Parties: UNITED STATES of America, Appellee, v. Raymond H. FLYNN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 996

87 F.3d 996

UNITED STATES of America, Appellee, v. Raymond H. FLYNN, Appellant.

No. 95-3001.

United States Court of Appeals,

Eighth Circuit.

Submitted April 9, 1996.

Decided July 1, 1996.

Burton H. Shostak, St. Louis, MO, for Appellant.

Dean R. Hoag, St. Louis, MO, argued (Edward L. Dowd, Jr., United State Attorney, on the brief), for Appellee.

Before BEAM and MURPHY, Circuit Judges, and BURNS, ^* District Judge.

MURPHY, Circuit Judge.

Raymond H. Flynn appeals from the denial by the district court ¹ of his motion under 28 U.S.C. § 2255 to vacate, correct, or set aside his sentence. He asks for "all relief to which he may be entitled" or a new trial based on unconstitutional jury instructions, ineffective assistance of counsel, and the nondisclosure of certain exculpatory evidence. We affirm.

Flynn was indicted for participating in an organization directed by Paul Leisure which was charged with committing several violent crimes in order to maintain control of certain labor unions and to retaliate against rival groups. According to the indictment, these crimes included the car bomb murders of Paul Spica and George "Sonny" Faheen and a conspiracy to murder James Anthony Michaels III and others.

Following a jury trial in 1987, Flynn was convicted of racketeering under the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. § 1962(c), conspiring to violate RICO, 18 U.S.C. § 1962(d), and illegally using explosives and transporting them interstate, 18 U.S.C. § 844(d). He was sentenced to twenty years imprisonment for racketeering, twenty years concurrently for conspiracy, and forty-five years concurrently on the explosives count. The convictions on the RICO and conspiracy counts were affirmed, but that on the explosives count was reversed because of insufficient evidence of interstate transportation. United States v. Flynn, 852 F.2d 1045 (8th Cir.), cert. denied, 488 U.S. 974, 109 S.Ct. 511, 102 L.Ed.2d 546 (1988).

On his § 2255 motion, Flynn argued that his due process rights were violated by errors in the jury instructions, that he was denied effective assistance of trial and appellate counsel, that he should have had a hearing in the trial court on whether his counsel had a conflict of interest, that the prosecution failed to disclose Brady material, and that telephone conversations and electronic surveillance were improperly sealed. Following an evidentiary hearing and a report and recommendation denying relief, the district court adopted the report and ordered that Flynn's § 2255 motion be denied. Flynn renews the majority of his claims on appeal, as set forth in detail below.

I.

Flynn argues that jury instructions for Count I were unconstitutional because they did not require the jury to make a unanimous finding as to the two predicate acts necessary for a RICO violation. According to Flynn, the complexity of his case rendered it highly probable that the jury did not find beyond a reasonable doubt every element necessary to constitute a RICO violation, as required by the Fifth Amendment due process clause. See Cupp v. Naughten, 414 U.S. 141, 148, 94 S.Ct. 396, 401, 38 L.Ed.2d 368 (1973). He also contends that it was entirely probable that the jury did not unanimously agree on the predicate acts Flynn committed, which violated his Sixth Amendment right to a unanimous jury verdict. See Andres v. U.S., 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948) (jury unanimity constitutionally required for a guilty verdict in federal criminal cases); Johnson v. Louisiana, 406 U.S. 366, 371, 92 S.Ct. 1635, 1637-38, 32 L.Ed.2d 162 (1972) (Powell, J., concurring); United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 191, 98 L.Ed.2d 143 (1987).

Since Flynn did not challenge the instructions at trial or on direct appeal, he may not obtain collateral relief unless he shows both cause excusing his double procedural default and actual prejudice. United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982). A court need not determine whether cause has been established if the defendant has failed to demonstrate actual prejudice. Id.

Actual prejudice can be shown if the challenged instruction "so infected the entire trial that the resulting conviction violates due process." Id. at 169, 102 S.Ct. at 1595. An instruction that is undesirable, erroneous, or even universally condemned is not sufficient reason for relief. Id. A defendant must show that the instructional error actually and substantially disadvantaged his entire trial, not merely that it created a possibility of prejudice. Id. at 170, 102 S.Ct. at 1595-96. The adequacy of the instructions must be evaluated as a whole. Id. at 169, 102 S.Ct. at 1595; United States v. Butler, 56 F.3d 941, 945 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 322, 133 L.Ed.2d 224 (1995).

Count I charged Flynn with committing three predicate acts in violation of RICO: (1) conspiracy to murder, and the murder, of John Paul Spica; (2) conspiracy to murder James Anthony Michaels III and others; and (3) conspiracy to murder, and the murder, of George "Sonny" Faheen. In order to convict Flynn on this count, the government had to prove that he participated, either directly or indirectly, in an enterprise affecting interstate commerce through a pattern of racketeering activity involving two or more predicate acts. 18 U.S.C. §§ 1961(5) and 1962(c); United States v. Ellison, 793 F.2d 942, 949-50 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986). The government also had to prove that the charged predicate acts were related to the affairs of the enterprise and were of an ongoing and continuous nature. Id. at 950.

Several instructions covered key RICO provisions. Instruction 20 stated that in order to establish a RICO violation, five essential elements must be established beyond a reasonable doubt, including commission of, or aiding and abetting, at least two acts of racketeering activity as alleged in Count I. Instruction 25 told the jurors that they must find beyond a reasonable doubt that Flynn committed a particular racketeering act and "must be unanimous in [their] decision whether he did so by conspiracy to murder, by murder, or by both." It also instructed that if Flynn committed such an act both by conspiracy to murder and murder, it would count as only one racketeering act. Finally, Instruction 29 required the jury to find beyond a reasonable doubt that Flynn

committed or aided and abetted in the commission of at least two of the predicate acts set out in Count I and you must unanimously agree that at least two of the predicate acts were committed by that defendant.

Regardless of whether Flynn could establish cause to excuse his procedural default, ² he has not shown a substantial likelihood that the challenged jury instructions actually prejudiced him at trial. See Frady, 456 U.S. at 174, 102 S.Ct. at 1597-98. In accordance with the Fifth Amendment, the jury was instructed it could convict Flynn of violating RICO only if it found beyond a reasonable doubt every element of the offense, including the commission of at least two predicate acts. See Cupp, 414 U.S. at 148, 94 S.Ct. at 401. The jury was also instructed that it "must be unanimous in its decision" that Flynn committed a predicate act and "unanimously agree that at least two of the predicate acts" in Count I were committed by Flynn. Although it would have been desirable if the instructions had in addition stated that the jury must be "unanimous as to which acts" it believed the defendant had committed, see, e.g., Devitt, Blackmar and O'Mally, Federal Practice and Jury Instructions § 48.06, the mere possibility that the jurors might not have unanimously agreed on the particular acts Flynn committed does not violate the Sixth Amendment. See Eagle Elk, 820 F.2d at 961. When viewed as a whole, the instructions were not incorrect or misleading. See Frady, 456 U.S. at 169, 102 S.Ct. at 1595; Butler, 56 F.3d at 945; see also Flynn, 852 F.2d at 1052 (jury had been "properly instructed" as to both RICO counts against Flynn).

Moreover, Flynn has not shown that he is innocent of the RICO violation and that a fundamental miscarriage of justice would result from his conviction. See Frady, 456 U.S. at 172, 102 S.Ct. at 1596-97; Flynn, 852 F.2d at 1052-54 (there was "no reason to believe" that Flynn was convicted for crimes in which he did not participate). Since Flynn has failed to show that the instructions infected "his entire trial with error of constitutional dimensions," the district court properly denied him relief on this claim. Frady, 456 U.S. at 170, 102 S.Ct. at 1595-96.

II.

Flynn also raises several claims of ineffective assistance of counsel. In order to succeed on these claims, Flynn must show his counsel's performance was professionally unreasonable, and also a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 691, 694, 104 S.Ct. 2052, 2066-67, 2068, 80 L.Ed.2d 674 (1984). If Flynn fails to prove unreasonable performance, then the prejudice prong need not be considered, and vice versa. Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989).

In reviewing counsel's performance, there is a strong presumption that all significant decisions fell within "the wide range of professionally competent assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The correct inquiry is not whether counsel's decision was correct or wise, but whether it "was an unreasonable one which only an incompetent attorney would adopt" considering all the circumstances. Stokes, 851 F.2d at 1092. Prejudice, for purposes of an ineffective assistance of counsel claim, means that "one's confidence in the outcome of the trial...