U.S. v. Farmer, s. 89-1491

• Decision Date: 28 January 1991
• Docket Number: 89-1535,Nos. 89-1491,89-1623 and 89-1624,89-1622,89-1536,s. 89-1491
• Citation: 924 F.2d 647
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack FARMER, Kevin McNab, Pamela Farmer, Martin Byrski, James Villalpando, and Michael Farmer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 647

924 F.2d 647

UNITED STATES of America, Plaintiff-Appellee, v. Jack FARMER, Kevin McNab, Pamela Farmer, Martin Byrski, James Villalpando, and Michael Farmer,

Defendants-Appellants.

Nos. 89-1491, 89-1535, 89-1536, 89-1622, 89-1623 and 89-1624.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 1990.

Decided Jan. 28, 1991.

Thomas M. Durkin, Asst. U.S. Atty., David S. Rosenbloom, Office of the U.S. Atty., Chicago, Ill., for U.S.

David C. Thomas, Legal Services Center, Chicago, Ill., for Jack Farmer.

Kenneth L. Cunniff, Chicago, Ill., for Kevin McNab.

John A. Meyer, Chicago, Ill., for Pamela Farmer.

Sarah Jennings Hunt, Cambridge, Mass., Donald A. Harwood, Hrones & Harwood, Boston, Mass., for Martin Byrski.

Paul M. Brayman, Chicago, Ill., for James Villalpando.

Marianne Jackson, Chicago, Ill., for Michael Farmer.

Before CUDAHY, COFFEY and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

The appellants were all convicted of RICO and/or other criminal offenses in connection with their involvement in a drug, robbery and extortion ring headed by appellant Jack Farmer. The appellants have appealed their convictions on numerous grounds. We affirm.

I. FACTS

The investigation leading to the drug and racketeering charges in this large RICO conspiracy case began in 1983 when one Taras Jaworskyj told the FBI about the drug ring in which he was involved. The information provided by Jaworskyj led to a three year investigation into the expansive criminal organization headed by appellant Jack Farmer. This organization sold drugs, committed murder and perpetrated home invasions. After a federal indictment was returned against him in 1983, Jack Farmer pleaded guilty to one count of possessing cocaine with intent to distribute and to one count of conspiracy to distribute cocaine. The plea agreement then signed by Jack Farmer stated specifically that the federal government was not precluded from prosecuting him for racketeering acts then under investigation. (In addition to pleading guilty to these two federal drug counts, Jack Farmer had previously been accused and acquitted of murder in Illinois state court.)

A grand jury subsequently returned another federal indictment containing eighty-five counts against Jack Farmer, the other parties to this appeal (including Jack Farmer's brother and wife) and others. The first trial of the appellants here ended in a mistrial. At the second trial, a jury found these appellants guilty of most of the counts set forth in the indictment. After denying various motions for new trials and judgments of acquittal, the district court sentenced all of the appellants to substantial jail time.

The appellants allege a myriad of errors on appeal. These alleged errors include claims: (1) that Jack Farmer's conviction violated the double jeopardy clause of the fifth amendment; (2) that the district court abused its discretion in upholding the sufficiency of the government's Title III applications for electronic surveillance; (3) that the district court abused its discretion in refusing to sever the trials of some of the appellants; (4) that the district court improperly exercised its discretion in conducting the jury selection process; (5) that the trial court abused its discretion in admitting/excluding certain evidence; (6) that the district court erroneously instructed the jury as to the telephone counts; (7) that the district court's conspiracy instructions constituted plain error; (8) that there was insufficient evidence to support the jury's finding that Jack Farmer's criminal organization had the requisite effect on interstate commerce; (9) that the jury erroneously or improperly convicted Jack Farmer of extortion and various tax violations; (10) that the district court's instruction on the obstruction of justice count was improper; (11) that it was an abuse of discretion for the district court to repeat its Silvern instruction; (12) that the district court did not adhere to the requirements of Federal Rule of Criminal Procedure 32 when sentencing appellant McNab; and (13) that the sentences given to appellants James Villalpando and Pamela Farmer were excessive and the result of the district court's reliance upon improper inferences or factors.

All of the appellants' claims lack merit. The double jeopardy, interstate commerce and disparate sentencing allegations raised by the appellants are discussed in some detail. The appellants' remaining claims are discussed in a more summary fashion below. Additional facts are provided as warranted.

II. ANALYSIS

A. Double Jeopardy

Count II of the indictment charged defendant Jack Farmer with conducting the affairs of an enterprise through a pattern of racketeering activity. That count alleged fifty-nine separate predicate acts, among them: two murders, nine robberies, two extortions, an obstruction of justice and various drug trafficking offenses. The jury found that Jack Farmer had committed forty-one of these predicate acts. Jack Farmer now claims that his conviction under Counts I (for racketeering conspiracy) and II (for racketeering) of the indictment violated double jeopardy because five of the forty-one predicate acts he was found to have committed had actually been the subject of previous criminal proceedings. More specifically, he complains that Racketeering Act Number 46 alleged a murder of which he had already been acquitted by an Illinois court, and that Racketeering Acts Numbers 1 through 4 and 37 alleged drug offenses that were the subject of the previous federal guilty plea in 1983. ¹

Jack Farmer does not have a valid double jeopardy claim with respect to his previous acquittal for murder in state court. It is a fundamental principle of our dual criminal systems that even criminal acts which form the basis of a prior state acquittal can be used as predicate acts in a federal proceeding without violating double jeopardy. Simply put, "a conviction or acquittal by one sovereign does not constitute prior jeopardy for purposes of prosecution by the other sovereign." United States v. Jones, 808 F.2d 561, 565 (7th Cir.1986), cert. denied sub nom. Humphrey v United States, 481 U.S. 1006, 107 S.Ct. 1630, 95 L.Ed.2d 203 (1987). This so-called "dual sovereignty" doctrine has been consistently upheld by the Supreme Court in the name of federalism. Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985); United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 1083, 55 L.Ed.2d 303 (1978); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); see also United States v. Schwartz, 787 F.2d 257, 266 (7th Cir.1986). Hence, a federal RICO conviction which includes predicate acts for which a defendant has already been acquitted under state law does not violate double jeopardy. United States v. Jones, 808 F.2d at 565; see also Hutul v. United States, 582 F.2d 1155, 1157 (7th Cir.1978), cert. denied, 440 U.S. 911, 99 S.Ct. 1222, 59 L.Ed.2d 459 (1979). Given the "dual sovereignty" doctrine, then, successive state and federal prosecutions for the same acts do not offend the fifth amendment to the United States Constitution. Successive prosecutions by the same sovereign must, however, be analyzed under a different theory.

With respect to same-sovereign prosecutions, Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), decided just before we heard this appeal, held that "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. 110 S.Ct. at 2084. ² The Third Circuit recently held that Grady is inapplicable to RICO prosecutions, such as this one, because "RICO's language and legislative history clearly evince Congress's intent to allow separate prosecutions and cumulative punishment of predicate offenses and RICO offenses." United States v. Pungitore, 910 F.2d 1084, 1108 (3d Cir.1990) (citing United States v. Grayson, 795 F.2d 278, 283 (3d Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987)). In light of the facts presented by this case, however, we believe it is unnecessary to assess the applicability of Grady v. Corbin to the double jeopardy claims of appellant Jack Farmer.

Four of the forty-one predicate acts which Jack Farmer has been found to have committed were acts to which Farmer had previously pleaded guilty. The plea agreement signed by Farmer specifically noted that the federal government was continuing to investigate him for "acts of racketeering" and that the plea "in no way preclude[d] the federal government from prosecuting defendant Farmer for those acts." Plea Agr. at 4, p 11. Hence, it could be argued with some force that Jack Farmer specifically waived any double jeopardy claims relating to the conduct which was the subject of both the federal plea agreement in the earlier case and the later racketeering charges.

Moreover, in addition to the four predicate acts challenged here, Jack Farmer was found to have committed thirty-seven other predicate acts. This is surely enough to support the finding of a RICO pattern. It should also render any reliance upon Farmer's previous convictions, even if improper, harmless. See, e.g., Pungitore, 910 F.2d at 1107 ("[E]xtortion was only one of the 32 predicate acts which the jury found that [the defendant] had committed. Thus, even if we deleted the [extortion count], we would affirm the convictions."); United States v. Rone, 598 F.2d 564, 571 (9th Cir.1979), cert. denied sub nom. Little v. United States, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). Because the inclusion of the challenged predicate acts (involving federal crimes) is not necessary to sustain Jack Farmer's conviction, his corresponding double jeopardy claims fail on harmless error grounds. As noted, the double jeopardy claim...