U.S. v. Brown, s. 86-3065
| Decision Date | 07 July 1987 |
| Docket Number | Nos. 86-3065,s. 86-3065 |
| Citation | 262 U.S. App. D.C. 183,823 F.2d 591 |
| Parties | UNITED STATES of America v. Warren BROWN, a/k/a Prince Asiel, et al., Appellants. to 86-3073 and 86-3075. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Criminal Nos. 85-00342-01, 02, 04, 05, 06, 07, 08, 09 and 10).
E. Edward Bruce (Appointed by this Court), with whom Richard A. Friedman and William J. Garber, Washington, D.C., were on brief, for appellants, Warren Brown, James B. Stone, Gerald E. Bethea, J.C. Vortis, Gregory Coles, Thomas Cavin, Darryl Grissom and Kenneth E. Robinson in Nos. 86-3065, 86-3066, 86-3067, 86-3068, 86-3069, 86-3071, 86-3072, 86-3073 and 86-3075.
David B. Smith (Appointed by this Court), for appellant, Cordell Debardelaben in No. 86-3070.
Russell D. Duncan, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Joseph M. Hannon, Jr., Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.
Warren Brown entered an appearance pro se in No. 86-3065.
James B. Stone entered an appearance pro se in No. 86-3066.
Gerald E. Bethea entered an appearance pro se in No. 86-3067.
Thomas Cavin entered an appearance pro se in No. 86-3071.
Kenneth E. Robinson entered an appearance pro se in No. 86-3073.
Before MIKVA, BORK and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
Appellants were convicted of a wide variety of criminal charges after thirteen weeks of trial and eight weeks of jury deliberations. We find that the district court's dismissal of a juror in the midst of the jury's lengthy deliberations deprived the appellants of their constitutional right to a unanimous jury. We must therefore reverse the convictions.
All nine of the appellants in this case are members of a religious group formally titled the "Original Hebrew Israelite Nation of the Kingdom of Jerusalem" and commonly called the "Nation." Members of the Nation are organized into congregations called "missions"; astride all of these missions are several "ministries" or governing bodies. Appellant Warren Brown is the head of one of the Nation's ministries, which is located in Chicago; appellants James Stone and Gerald Bethea are members of Brown's staff. Appellant J.C. Vortis leads the Nation's Baltimore/Washington-area Mission. The remaining appellants in this case--Gregory Coles, Thomas Cavin, Cordell Debardelaben, Daryl Grissom and Kenneth Robinson--belong to the Baltimore/Washington-area Mission.
In September of 1985, a grand jury returned a sixty-nine-count indictment against the nine appellants. Count 1 of the indictment charged each appellant with conspiring to conduct the affairs of an enterprise through a pattern of racketeering activity, in violation of section 1962(d) of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq. (1984). Count 2 of the indictment charged each appellant with actually conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of section 1962(c) of RICO. The enterprise alleged in these two counts was "a group of individuals associated in fact which operated within the framework of a larger group ... [called] The Nation" and organized itself along similar hierarchical lines. The pattern of racketeering activity alleged in the two counts consisted of fifteen discrete acts, each of which fell within section 1961(1)'s definition of "racketeering activity." Subsequent counts of the indictment listed these fifteen predicate acts as separate and independent offenses. Still other counts charged offenses that were not also listed as RICO predicate acts because they did not fall within section 1961(1)'s definition of "racketeering activity."
The multitude of offenses charged in the indictment arose from a smaller number of alleged criminal schemes. The most common kind of scheme alleged was the so-called "shopping spree." According to the indictment, in each of these sprees, a member of the enterprise, employing an assumed name and counterfeit identification, opened a checking account with a small cash deposit at a local bank. The member then deposited forged checks into the account, thereby artificially inflating its balance. A short time later, the member went shopping. In essence, the member wrote worthless checks as payment for valuable goods, using a counterfeit driving license and counterfeit credit cards as supporting identification. (Occasionally, the member simply used the counterfeit credit cards to pay for the desired goods.) When the bank discovered that the original deposit checks were forgeries and refused to honor a written check, the member abandoned the account. Another common kind of criminal scheme described in the indictment was the theft and use of blank airline ticket stock. According to the indictment, in each scheme of this kind, a member of the enterprise stole a large quantity of blank ticket stock from an airline company. Members of the enterprise then prepared counterfeit tickets from the stock and either used them for personal travel or sold them to individuals not associated with the enterprise. Finally, the indictment alleged that members of the enterprise had participated in two schemes to defraud the government. In one scheme, members of the enterprise allegedly obtained welfare benefits by fraud; in the other scheme, members allegedly planned to obtain social security benefits in a fraudulent manner.
Trial of the nine appellants commenced on March 10, 1986 and continued for thirteen weeks. In the government's case-in-chief, prosecutors presented testimony from more than one hundred witnesses and introduced a mass of documentary and physical evidence, including handwriting analyses, fingerprint identifications, and stolen credit cards and checks. The prosecutors also played to the jury nearly one hundred hours of tape-recorded telephone conversations between members of the alleged enterprise. The appellants earlier had objected to the admission of these recordings on the ground that they had been illegally obtained, but the trial judge had refused to suppress the evidence.
Six of the nine appellants represented themselves for large portions of the trial. On March 24, 1986, after two weeks of trial, Stone, Bethea, Vortis, Cavin, and Robinson dismissed their court-appointed counsel; each of these appellants represented himself for the remainder of the trial. On May 27, the fourth day of the defense case, Brown discharged his retained counsel; he too represented himself for the duration of the trial. Prior to allowing any of these appellants to proceed pro se, the court questioned the voluntariness of their decisions and warned them of the hazards of self-representation present in all serious criminal cases.
On June 6, the jury began its deliberations. On July 8, after five weeks of deliberations, the jury sent a note to the judge asking: VI Joint Appendix (J.A.) at 7246. The next morning, the court returned a note to the jury stating:
In response to your note of yesterday, I instruct you as follows: In order to return a verdict of either guilty or not guilty as to a defendant on any count, your decision must be unanimous. With respect to those counts and those defendants on which you have not yet reached agreement, please continue your deliberations in an effort to reach an unanimous verdict of either guilty or not guilty.
Id. at 7252. On the afternoon of the same day, one of the jurors sent a note to the court stating: "I Bernard Spriggs am not able to discharge my duties as a member of this jury." Id. at 7257. After conferring with counsel, the court decided to call Spriggs into the courtroom and attempt to discover his reason for wanting to quit deliberations. When Spriggs entered the courtroom, the following discussion, quoted in its entirety, occurred:
But can you tell us just generally what the nature of the problem is. Could it be a personality problem between you and other members, or any one or more members of the jury, or is it something else?
You cannot what?
If I had known at the beginning of this trial what the act said, I would have not said I could be impartial.
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