U.S. v. Flynn, 87-1505
| Decision Date | 27 July 1988 |
| Docket Number | No. 87-1505,87-1505 |
| Citation | 852 F.2d 1045 |
| Parties | 26 Fed. R. Evid. Serv. 797 UNITED STATES of America, Appellee, v. Raymond H. FLYNN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lawrence J. Fleming, St. Louis, Mo., for appellant.
Frederick R. Buckles, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Before HEANEY, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
The United States, in a three-count indictment, charged appellant Raymond H. Flynn with violating and conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1962(c) and (d), (counts I and II), and with interstate transportation of an explosive in violation of 18 U.S.C. Sec. 844(d) (count III). According to the indictment, Flynn participated in an organization which engaged in a series of violent crimes in an attempt to obtain and maintain control of various labor unions and to retaliate against leaders of rival groups, organizations and families for acts committed against the enterprise.
The United States District Court 1 for the Eastern District of Missouri, upon a trial by jury, convicted Flynn of the crimes charged against him.
Flynn raises a number of issues on appeal from the convictions, including the admissibility of hearsay testimony and recorded conversations pertaining to crimes in which Flynn was not an active participant, sufficiency of the evidence for conviction on all counts, the propriety of certain comments made by the Government in its closing arguments and the refusal of the district court to suppress the fruits of the Government's electronic surveillance. We
affirm the RICO convictions, counts I and II, but reverse count III, transportation of the explosive for insufficiency of the Government's evidence.
As required for appellate review, we state the facts in the light most favorable to the jury's verdict. United States v. Minor, 815 F.2d 472, 473 (8th Cir.1986).
On October 4, 1979, appellant Flynn became the business manager of Local 42 of the Laborers' International Union in St. Louis, Missouri. Shortly thereafter, Anthony Giordano, considered by many to head the Italian organized crime faction in St. Louis, called a meeting with Flynn and others to discuss his plans for including an Italian influence in Local 42. To include the Italian influence in Local 42, Anthony Giordano placed an associate, John Paul Spica, into that Local. The Italians at that time did control a different laborers' local, Local 53.
Spica bragged to Paul Leisure of his intent to kill Flynn and take over Local 42. Paul Leisure and his brother, Anthony Leisure, were, at the time, attempting to take control of the third laborers' local in St. Louis, Local 110, and thus were concerned that a successful takeover of control of Local 42 by the Italians next would lead to an attempt by the Italians to control Local 110. Paul Leisure, therefore, in an effort to forge an alliance with Flynn and to more effectively thwart the Italians' takeover attempts of Local 42, told Flynn of Spica's intention to kill Flynn.
Paul Leisure thereupon began a campaign to learn Spica's daily habits and to gain his trust and confidence. His brother, Anthony Leisure, obtained a car similar to that driven by Spica on which he and Flynn could practice wiring a bomb to the car. Flynn and Anthony Leisure made several attempts to place the bomb on Spica's car. Finally, on the night of November 7-8, 1979, they succeeded. On the morning of November 8, 1979, the bomb exploded as Spica sat in his car, killing him.
In the meantime, beginning in the late 1970s, Paul and Anthony Leisure encountered difficulties in securing and maintaining control of Local 110. Prior to his death in June of 1977, Ray Massaud, Local 110's business manager, reached an agreement with Anthony Leisure that upon Massaud's death, his son, John Massaud, would become Local 110's business manager, but that John would act only as a figurehead. Ray Massaud then created a separate but equal position of assistant business manager for Anthony Leisure with the understanding that Leisure could hire and fire organizers and business agents for the Local. Anthony Leisure hired Ronald Joseph Broderick, a Leisure associate, to assist Anthony in securing control of the union. Broderick served as a union organizer.
Over the next year, the Leisures discovered that the agreement did not work as planned. John Massaud hired relatives of both Giordano and James Michaels, Sr., the reputed head of the Syrian organized crime faction in St. Louis, without consulting Anthony Leisure. At this time, the Leisures discussed the possibility of murdering John Massaud, but decided against it for fear of starting a war with the Italians.
When the Leisures learned that Mike Trupiano, a nephew of Anthony Giordano and president of Local 110, and John Massaud planned to fire Broderick because Broderick was neither Italian nor Syrian, the Leisures realized their failure in exercising complete control over the Local. In an attempt to solidify their power base in Local 110, the Leisure group decided that someone had to be killed. The group considered killing Trupiano but decided against it because they feared it would anger some Italians. The group settled on murdering James Michaels, Sr. Not only would his death avenge the murder of Paul and Anthony Leisure then planned the bombing of Michaels, Sr. Leisure associate Fred Prater constructed a bomb using a remote control device provided by an associate, Charles Loewe. Another associate, John Ramo, installed safety devices on the bomb. Anthony Leisure supplied the dynamite. They stored the bomb at L.N. & P., a towing company in St. Louis owned by the Leisures and Fred Prater.
Richard Leisure in the early 1960s, 3 but it would also make possible the firing of Francis Michaels, Michaels, Sr.'s brother, and James Michaels, Michaels, Sr.'s grandson, from the Local, thus leaving two vacancies for Anthony Leisure to fill. Thus, in their view, Paul Leisure would become the head of the Syrian organized crime faction in St. Louis.
Various members of the Leisure group surveilled Michaels, Sr., learning his habits and routine. Anthony and David Leisure and Broderick watched Michaels, Sr. on a southern Illinois golf course and David Leisure used the apartment of a friend to observe Michaels, Sr.'s movements at a local church where Michaels, Sr. often ate lunch. Anthony and David Leisure practiced placing the bomb on the underside of a stolen vehicle identical to that driven by Michaels, Sr.
On September 17, 1980, Anthony and David Leisure, Ramo and Broderick drove in a van to the place where Michaels, Sr. was having lunch and David Leisure placed the bomb on the underside of Michaels, Sr.'s car. Paul Leisure instructed Charles Loewe to act as a spotter in the area and to radio in any problems. As Michaels, Sr. drove down Interstate 55 in South St. Louis County, the bomb exploded, killing Michaels, Sr. in the blast. Eventually, Michaels, Sr.'s relatives were driven from Local 110.
The Government presented no evidence implicating Flynn in the Michaels, Sr. bombing.
On August 11, 1981, less than one year after the death of Michaels, Sr., Paul Leisure sustained serious injury, losing the bottom portion of both legs, when a bomb exploded in his car in front of his residence in St. Louis. After learning from John Vitale, who succeeded Giordano as head of the Italian faction of organized crime in St. Louis, that Paul Leisure's bombing resulted from "a family thing," the Leisure group concluded that the Michaels family caused Paul Leisure's injuries. Learning that local law enforcement officials focused their investigation on the Michaels family, the Leisure group was reinforced in this conclusion.
On one occasion, in the few weeks following the bombing, Flynn, Anthony Leisure and Joe Broderick drove to the Michaels family farm in Fredericktown, Missouri, intending to kill those present. No one was at the house, but Flynn, Anthony Leisure and Broderick discussed ways to kill persons who might use the house. Flynn suggested dangling dynamite down the chimney and blowing up everyone present.
In another attempt to avenge the bombing of Paul Leisure, Anthony and David Leisure shot John Charles Michaels, grandson of Michaels, Sr., at The Edge Restaurant in St. Louis. Prior to the shooting, Anthony Leisure, Joe Broderick and Fred Prater watched the restaurant and prepared an abandoned building next to the restaurant to facilitate the shooting and getaway. Charles Loewe drove Anthony and David Leisure to the site, where the Leisures fired on Michaels and a friend, one Dennis Day. The Leisures then fled in a van driven by Joe Broderick.
The Government produced no evidence implicating Flynn in the shooting.
The Leisure group believed that Bob Peters, who worked at Pepsi-Cola, was a member of the Michaels group. They devised a plan whereby Anthony Leisure would shoot Peters as he left work one afternoon. They abandoned the plan when a workman appeared who may have seen Anthony Leisure and Loewe.
The Leisures also suspected that George "Sonny" Faheen, a nephew of Michaels, Sr., had participated in Paul Leisure's bombing. David Leisure, Charles Loewe and other Leisure associates, including Michael Kornhardt, Frank Termine and Malcolm "Mike" Flinn, 4 appellant's brother, watched Faheen, learning his daily habits, where he lived and where he worked. They obtained a car similar to that driven by Faheen to use as a practice vehicle for placing a car bomb.
On October 15, 1981, David Leisure and John Ramo met Anthony Leisure, Broderick and Flynn at a local fast food restaurant. Flynn opened the trunk of...
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