U.S. v. Brown

• Decision Date: 05 July 1977
• Docket Number: No. 75-2482,75-2482
• Citation: 555 F.2d 407
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lonnie M. BROWN, Robert L. Newsome, James B. Finney, Julian E. Seymour, Jr., and Benjamin Clyde Cranford, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 407

555 F.2d 407

UNITED STATES of America, Plaintiff-Appellee, v. Lonnie M. BROWN, Robert L. Newsome, James B. Finney, Julian E. Seymour, Jr., and Benjamin Clyde Cranford, Jr. Defendants-Appellants.

No. 75-2482.

United States Court of Appeals Fifth Circuit.

July 5, 1977.

Rehearing and Rehearing En Banc Denied Aug. 24, 1977.

S. Phillip Brown, Macon, Ga. (Court-appointed), for Brown.

Frank K. Martin, Columbus, Ga., for Seymour.

Benjamin M. Garland, Macon, Ga. (Court-appointed), for Newsome.

Harry F. Thompson, Macon, Ga., for Cranford.

D. L. Rampey, Jr., Elberton, Ga., for Finney.

Ronald T. Knight, U.S. Atty., O. Hale Almand, Jr., Atty., Macon, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before GODBOLD and TJOFLAT, Circuit Judges. ^*

TJOFLAT, Circuit Judge:

The appellants, former officers of the Macon, Georgia, police department, were charged in a three count indictment with protecting various vice-related activities in violation of several provisions of the Organized Crime Control Act of 1970 (the Act). ¹ They were convicted following a jury trial in May 1975. ² In this appeal, appellants question the validity of the indictment, a variety of procedural and evidentiary rulings, and the final instructions to the jury. To place these issues in proper perspective and to facilitate their analysis, we shall first set forth what the indictment alleged and what the evidence at trial disclosed.

I. THE INDICTMENT

Count I of the indictment is grounded on 18 U.S.C. § 1962(c) (1970), which provides:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

It was alleged that appellants violated this section because, as employees of the City of Macon police department, they knowingly participated in racketeering activities from 1966 through July 1974. ³ The forbidden activities were alleged to have included the solicitation and acceptance of bribes to protect gambling, prostitution and the illicit manufacture, distribution and sale of whiskey in the Macon community. ⁴

Count II alleged a violation of 18 U.S.C. § 1962(d) (1970), which provides, "It shall be unlawful for any person to conspire to violate any of the provisions of (sections 1962(a), (b), or (c))." It was alleged that appellants, again in their capacity as police officers, conspired to violate section 1962(c) by conducting the affairs of the police department through the pattern of racketeering activities just described. ⁵ The conspiracy was alleged to have begun at an unknown time prior to October 15, 1970, and to have continued until the return of the indictment on March 25, 1975.

In Count III the appellants and others were charged with violating 18 U.S.C. § 1511 (1970) ⁶ by conspiring to obstruct the enforcement of Georgia criminal law with the intent to facilitate an illegal lottery which was in continuous operation in excess of thirty days and involved over five persons. ⁷ The conspiracy allegedly began at an unspecified time prior to October 15, 1970, and ended when the indictment was returned.

II. THE EVIDENCE

The evidence recounted the efforts of the appellants to protect vice-related criminal activity in the Macon community. The first witness, Shirley Dixon, the twenty-six year old daughter of a deceased moonshiner and lottery operator, Talmadge Dixon, set the stage by revealing how her father had been able to operate with police protection from the 1950's until his retirement in 1966. When she was seven or eight years old she would accompany her father on his trips every two or three weeks to the office of the Chief of Detectives, W. A. Bargeron (who committed suicide prior to the indictment), where Dixon's moonshine and lottery operations would be discussed and the Chief would be given an envelope containing from one hundred to six hundred dollars. A similar envelope would be given to appellant Seymour. Ms. Dixon also recalled a visit to a still site in 1961 where her father discussed business with appellants Seymour and Finney.

Shirley Dixon was followed by fifty prosecution witnesses through whom the Government showed the expansion of the protection racket during the 1960's as additional officers became involved and more activities were brought under its umbrella. In the mid-1960's, for example, Bessie Jordan and Thomas Williams began weekly payments to appellants Finney and Newsome to facilitate their moonshine sales. During the same period, James Hughes began paying Seymour so his prostitution business at the Dempsey Hotel could flourish. The protection continued when the business moved to the Central Hotel in 1973 and was extended to cover his involvement in the management of William Prentis Tucker's lottery operation. ⁸ Tucker paid for protection, not only to Seymour, but also to appellants Brown and Cranford, who had become full participants in the scheme. Other illegal lotteries were allowed to operate at the same time, principally those run by Curtis Zeigler and Rudolph Flanders.

In the early 1970's a variety of organized gambling activities began to surface at places such as the Sportsman's Club, the Elk's Club, the Amvets Club, and the Sports Palace. The proprietors there also paid for the privilege of doing business. The slot machines and other gambling devices used at these establishments were manufactured and serviced by two local music companies, which in turn paid a premium to the police officers to stay in operation. ⁹ Individuals involved in these ventures testified for the Government. Testifying, too, were operators of illicit whiskey outlets and legitimate nightclubs which sold liquor without licenses. Each witness identified one or more of the appellants as the officer he had paid in order to operate free of police interference. Pimps and prostitutes also implicated one or more of the appellants as having received dividends in cash or kind.

The accounts of these vice activities were buttressed by the testimony of several law enforcement officers. Some were former Macon police officers who had actually participated in the pay-off schemes. Others were officers who had either observed pay-offs or had declined offers to join the conspiracy. Still others were officers who had been reprimanded by Chief Bargeron or appellant Seymour for attempting to enforce the vice laws. ¹⁰

The evidence demonstrated how well the appellants succeeded in providing effective protection to vice activity in Macon. The key to the entire operation was the policy instituted by Chief Bargeron and appellant Seymour ¹¹ of leaving vice law enforcement exclusively to the vice squad, where the officers were willing to provide protection. Officers assigned to other details were instructed to pass all information pertaining to vice-related crime to the vice squad. Many who did testified that their information was not acted on and that the activities they reported continued with impunity. Those who disobeyed and attempted to enforce the vice laws were reprimanded. On occasion, when an arrest had been made or contraband seized, Seymour would instruct the officer involved to try to fix the case or to arrange for the return of the contraband.

In sum, the Government's proof established the existence of an extensive protection racket through vice-squad manipulation. It was conceived in the late 1950's, grew during the 1960's, and by the early 1970's embraced a wide variety of activities. The operation was nourished by monetary payments, gifts and sexual favors to the officers, and it continued practically unabated until the federal grand jury investigation which led to the indictment in this case.

III. THE CONVICTIONS ON COUNT I

Appellants Seymour, Finney, Brown and Newsome claim that their convictions on Count I must be reversed because the indictment is defective in two respects. First, they argue that the indictment fails to charge a crime under section 1962(c) because the Macon police department is not an "enterprise" as that term is defined in 18 U.S.C. § 1961(4) (1970). ¹² Second, they claim that section 1962(c) violates the ex post facto clause of the Constitution ¹³ because it operates in this case to punish the appellants for acts they committed prior to the effective date of the Act October 15, 1970. Appellants also urge reversal of the Count I convictions because of errors in the jury instructions. We will consider each of these contentions in turn.

A. The Enterprise Issue

18 U.S.C. § 1961(4) (1970) defines enterprise as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." The thrust of appellants' argument is that this language cannot be construed to encompass a municipal police department. They submit that the statute on its face limits an "enterprise" to entities of a private, commercial nature and to those less formal, private groups which are "associated in fact." If this limitation does not flow from the plain meaning of the words, it is urged, resort to legislative intent should lead this court to a narrowed definition. Appellants point to the congressional hearings which, they claim, give no indication that Congress intended the term to include states, counties, cities or other political entities. Congress is said to have been concerned only with the problems posed by organized crime's attempts to infiltrate and control legitimate businesses and unions.

We are not persuaded by appellants' interpretation of section 1961(4) or their assessment of congressional intent. Initially, it should be observed that the actual language of the statute is very broad, encompassing any ...