U.S. v. Griffin

• Decision Date: 11 January 1982
• Docket Number: 80-5129 and 80-5134,Nos. 80-5124,s. 80-5124
• Citation: 660 F.2d 996
• Parties: UNITED STATES of America, Appellee, v. Robert GRIFFIN, Appellant. UNITED STATES of America, Appellee, v. Benjamin GARONZIK, Appellant. UNITED STATES of America, Appellee, v. Stanley DIAMOND, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 996

660 F.2d 996

UNITED STATES of America, Appellee, v. Robert GRIFFIN, Appellant.

UNITED STATES of America, Appellee, v. Benjamin GARONZIK, Appellant.

UNITED STATES of America, Appellee, v. Stanley DIAMOND, Appellant.

Nos. 80-5124, 80-5129 and 80-5134.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1981.

Decided Oct. 2, 1981.

Certiorari Denied Jan. 11, 1982.

See 102 S.Ct. 1029.

Joseph F. Murphy, Jr., Towson, Md., for appellant Robert Griffin.

Benjamin Lipsitz, Baltimore, Md., for appellant Benjamin Garonzik.

L. Paige Marvel, Baltimore, Md., for appellant Stanley Diamond.

David Dart Queen, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Price O. Gielen, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and RICHARD L. WILLIAMS, District Judge, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

Defendants in these consolidated appeals challenge their jury convictions for conspiracy to violate and the substantive violation of various sections of Title IX of the Organized Crime Control Act of 1970, 18 U.S.C. §§ 1961-1968 (RICO). We find no reversible error and affirm the convictions.

I

The indictment against Griffin, Garonzik, Diamond and two other persons, Baumgarten and Clott, ¹ resulted from a coordinated federal/state investigation in which ten persons were ultimately charged in two federal indictments ² and seven others were prosecuted by the State of Maryland. All seventeen eventually either were convicted following trial or pled guilty.

Count I of the indictment charged the defendants with conspiracy to violate 18 U.S.C. § 1962(c) in violation of 18 U.S.C. § 1962(d). In Count II, the defendants were charged with knowing participation in the conduct of the affairs of an "enterprise" through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c). The "enterprise" was defined as a "group of individuals (identified as including all the defendants and other unindicted co-conspirators in the conspiracy count) associated in fact to protect, promote and facilitate the interests of illegal gambling operations by corruption, bribery and attempted bribery of members of the police force of Baltimore City." The pattern of racketeering activity was alleged to consist of a series of payments to police officers over a period extending from September 6, 1978, to December 4, 1980.

At trial, the government presented evidence that Baltimore City Police vice squad officers George Klein and Broderick Kincaid were approached by a fellow officer in the fall of 1978 and told that retired police officer James Hooper wished to see them. Klein and Kincaid subsequently met with Hooper at a bar owned by him in northern Baltimore. Hooper told the officers that Sidney Allen, a bookmaker who had recently been raided by the vice squad, was willing to give them a paid vacation and money in return for the name of the informant who had provided the police with information about his bookmaking operation.

Klein and Kincaid immediately reported the attempted bribe to a superior officer. They were instructed to attend subsequent meetings with recorders which, it was arranged, would be monitored by the F.B.I. Klein and Kincaid subsequently met with Allen, who agreed to pay them $150 a month. He also revealed that he worked for a gambling operation controlled by Joseph Minoglio and Roy Calhoun.

At a meeting approximately one month later, Allen surprised the officers with a payment of $300. No explanation was given for the increased payment, but Allen told the officers that Garonzik, who had recently been arrested on various gambling charges, wished to meet with them.

Garonzik subsequently met with Klein and Kincaid and told them he would pay them $150 a month for the same favorable treatment and protection they had agreed to provide Allen. Garonzik informed the policemen that he worked for a gambling operation run by Stanley Diamond.

In April 1979, Klein and Kincaid arrested Diamond, whom they had never met, and Baumgarten on bookmaking charges. A few days after his arrest, Diamond met with the officers, informed them that he knew about the payments his employee, Garonzik, had been making to them for protection, and stated that he thought the bribes were "beautiful."

During this meeting, Diamond also told the officers that Baumgarten worked for a gambling operation run by two men named Jackman and Winterling and that that operation would pay them $1,000 to get the charges against Baumgarten dismissed. In response to a question from Kincaid, Diamond stated that he thought Baumgarten's organization would pay $200 a month for protection.

At a meeting in May, Diamond offered to pay Klein and Kincaid $1,000 to secure dismissal of the charges against him and the return of the $8,000 that had been seized at his arrest in April. Approximately two weeks later Diamond took the officers to a meeting with Baumgarten, who paid them $1,000. Diamond subsequently paid the officers the $1,000 he had offered for aid.

Shortly after his relationship with Klein and Kincaid began, Garonzik informed the officers that he knew another man who wished to make payments in return for protection from the officers. The officers subsequently met with Garonzik, who was accompanied by Clott, to set up a meeting between the officers and Griffin, the man who Garonzik had told the officers sought their protection. Garonzik told the officers that a gambling operation run by Clott and others had a "half book" arrangement with a gambling operation run by Griffin and Jerry Prevetti whereby the two bookmaking operations divided the risk of loss and the distribution of profits.

Klein and Kincaid subsequently met with Griffin, who agreed to pay them $200 a month for favorable treatment. In addition, he offered to pay the officers $500 if they would destroy lottery slips that had been seized by the police in a raid on Griffin's operation. Griffin also revealed that he often obtained "line" information from Diamond's operation.

Griffin later arranged a meeting between Klein and Kincaid and Clott, who offered the officers $1,000 to find out the name of the informant who had been providing police with information on his gambling operation in Silver Spring, Maryland. When asked if he could be trusted, Clott responded that he was the one who had led Griffin to the officers.

II

The defendants contend on appeal that their convictions should be reversed because RICO is directed only at legitimate enterprises; an "enterprise" defined under section 1962(c) must have an economic goal separate from the alleged pattern of racketeering; there was insufficient evidence that the enterprise defined in the indictment of the defendants had an effect on interstate commerce; and because there was insufficient evidence to support jury findings that the conspiracy alleged in Count I and the enterprise alleged in Count II existed. They further contend that the court erred in refusing certain instructions and otherwise in the handling of jury inquiries.

Since these appeals were heard, the Supreme Court, in United States v. Turkette, --- U.S. ----, 101 S.Ct. 2524, 69 L.Ed.2d 246 (U.S.1981), has now directly disposed of the first and, by necessary implication, of the second of these contentions against the position of the defendants. For the reasons given by another panel of this court in the companion case against Sidney Allen we hold that the evidence here was sufficient to support a finding that the enterprise alleged had a sufficient effect on interstate commerce to fall within the ambit of RICO. ³ See United States v. Allen, 656 F.2d 964 (4th Cir., 1981). We have examined and found no prejudicial error in the district court's instructions to the jury and in its refusal to give certain requested instructions.

Because it presents more serious problems, we discuss briefly, though in the end we reject also, the defendants' contention that the evidence showed that no defendant paid money to protect any gambling operation except the one in which he was involved, so that neither the meeting of minds requisite to proof of conspiracy nor the common purpose requisite to proof of an associated-in-fact "enterprise" was sufficiently shown.

III

The substantive "enterprise" violation of RICO charged to these defendants includes these essential elements: (1) employment by or association of a defendant with (2) an "enterprise" (3) engaged in or affecting interstate commerce (4) the affairs of which are conducted by or participated in by the defendant "through a pattern of racketeering activity." 18 U.S.C. § 1962(c). It is now settled after some division within the courts that the enterprise contemplated may be an illegitimate as well as a legitimate one. Turkette; accord United States v. Whitehead, 618 F.2d 523, 525 n.1 (4th Cir. 1980). Where, as here, the enterprise charged is a wholly criminal one, proof of its existence may overlap proof of the connecting pattern of racketeering activity, but "proof of one does not necessarily establish the other." United States v. Turkette, --- U.S. at ----, 101 S.Ct. at 2528. In that situation, "(t)he 'enterprise' is not the 'pattern of racketeering activity'; it is an entity separate and apart from the pattern of activity in which it engages," and its separate existence must be proved in order to convict. Id.

Although RICO contemplates that an "individual" may be an "enterprise," 18 U.S.C. § 1961(4), its basic concern, and the one here pertinent, is with associational enterprises. Of these, it posits two kinds. The first, not directly pertinent here, includes "legal entities," such as corporations and partnerships; the second, which is pertinent, includes "group(s) of individuals associated in fact though not a legal entity." Id.; see United States v. Turkette, --- U.S. at ----, 101 S.Ct. at 2528.

We need not be concerned here,...