U.S. v. Griffin

• Decision Date: 11 March 1983
• Docket Number: No. 81-5957,81-5957
• Citation: 699 F.2d 1102
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas GRIFFIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1102

699 F.2d 1102

UNITED STATES of America, Plaintiff-Appellee, v. Thomas GRIFFIN, Defendant-Appellant.

No. 81-5957.

United States Court of Appeals, Eleventh Circuit.

March 11, 1983.

Joel Hirschhorn, Miami, Fla., for defendant-appellant.

Deborah Watson, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and CLARK, Circuit Judges, and MARKEY ^*, Chief Judge.

MARKEY, Chief Judge:

In the United States District Court for the Southern District of Florida, Thomas Griffin was convicted by a jury of wire fraud (18 U.S.C. 1343 and 2) (Count II), of interstate travel with intent to promote an unlawful activity (18 U.S.C. 1952) (Count V), and of conspiracy to commit those offenses (18 U.S.C. 371) (Count I), all in relation to a scheme to profit from bets on races involving horses drugged by co-conspirators under Griffin's direction. ¹ Griffin appeals, alleging failure of the evidence to support his convictions and ineffective assistance of counsel. We affirm.

Background

In early 1975, Griffin operated a business called "Miami Thoroughbreds" from a Holiday Inn overlooking Calder Race Track in Miami. At that time he outlined to a groom, Robert Ostrander, a scheme to purchase horses, enter them in particular races at Calder, drug them and other horses, and then bet accordingly. Griffin enlisted five co-conspirators, obtaining a job for one with Mary Santos, a supplier of equestrian products, to insure access to the stable area at Calder. Griffin gave the drug he had concocted, and the names and stall numbers of horses to be drugged, to Ostrander and another, who then poured the drug into the water buckets of the selected horses. The record indicates that at least 13 horses were drugged, some repeatedly. Griffin and his group split the proceeds from bets made on the races, the outcome of which was thus controlled by Griffin.

Suspicions aroused, owners and trainers instituted extensive security measures in late 1975. Access to Calder's stables being foreclosed, Griffin sent Ostrander, two others of his cohorts, and later two horses, to Keystone Race Track in Pennsylvania, where Mary Santos' former employee obtained a vendor's license and obtained access to the stables. Cooperation of a willing trainer at Keystone was obtained. Daily surveys were conducted at Keystone and results were reported daily by Ostrander on the phone to Griffin in Miami. At week's end, Ostrander telephoned his opinion that security at Keystone appeared too tight. Griffin sent a lieutenant to investigate. After discussions with the earlier emissaries, with a local trainer willing to cooperate, and personal surveys of the "back of the track" or stable area, the four Calder cohorts and the willing trainer telephoned Griffin their conclusion that the scheme could not succeed at Keystone, and the scheme was abandoned there.

In December 1977, Ostrander told federal law enforcement officers about the scheme and his involvement. ² By December 1978, investigation had progressed to the point of a decision to "wire" Ostrander. In a December 19, 1978 conversation with the still trusted but now electrified Ostrander, Griffin discussed numerous details of the Ostrander was the principal witness for the prosecution at trial. His testimony was in many respects confirmed by Griffin's tape recorded admissions, by witnesses Mary Santos, Michael Potenza (a trainer), Frank Garey (investor who supplied money for Griffin's purchase of two horses), and racetrack officials, as well as by documentary evidence.

scheme and of his, Griffin's, participation in it. ³

Griffin was sentenced to concurrent terms of 18 months' imprisonment on each of the convictions for wire fraud and conspiracy, and was placed on three years' probation on the conviction for interstate travel with intent to promote unlawful activity, the latter to begin on completion of his term of imprisonment.

Issues

(1) Whether the evidence was sufficient to support Griffin's convictions.

(2) Whether ineffective assistance of trial counsel may be raised for the first time on direct appeal.

OPINION

(1) Sufficiency of the Evidence

Viewed in the light most favorable to the government, as viewed it must be, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), there was ample evidence here to support the jury's guilty findings on all three counts. Whatever the standard applied, ⁴ Griffin's challenge to the evidence is so lacking in merit as to require affirmance of the judgments on his convictions.

(a) Wire Fraud

Griffin says Judge Davis erred in denying his motion for acquittal on Count II because the evidence failed as a matter of law to support the conviction on that count. Griffin does not deny that the phone calls were made, or that the actions related to those calls were taken. His sole argument is that the purpose of the calls was to terminate not to further any scheme involved.

Achieving a surface ingenuity by a narrowing concentration on the ultimate decision to abandon the scheme at Keystone, Griffin's argument founders on the facts. Ostrander called Griffin every day to report on the scheme-furthering activities undertaken at Keystone. Having reported for a week on the progress of the first steps required by the scheme, Ostrander expressed the view that security obstacles would frustrate a successful outcome of the scheme. Even then, Griffin sent a lieutenant to Keystone to review the situation. That most if not all the calls were devoted to reports on progress toward accomplishment of the scheme is a fact rendering the argument without merit.

Under the statute, the government was required to prove that Griffin engaged in an interstate telephone conversation for the purpose of executing a fraudulent scheme. 18 U.S.C. 1343. ⁵ Most, if not all, of the daily telephone conversations of Ostrander and Griffin had exactly that purpose and intent. Moreover, calls to discuss ways of executing a fraudulent scheme, as these calls were, were clearly made with the intent "that the communication [would] help further the scheme," and whether they actually furthered it is irrelevant. United States v. Hammond, 598 F.2d 1008, 1010 (5th Cir.1979).

Judge Davis correctly denied the motion for judgment of acquittal on Count II.

(b) Interstate Travel

Alleging failure of the evidence to support his conviction on Count V, Griffin employs essentially the same argument, asserting that his sole act subsequent to the involved interstate travel was "his communication to Ostrander to terminate in advance any attempt to commit any illegal activities in Pennsylvania." (Emphasis Griffin's.)

Without quite saying so, Griffin argues that no act illegal under Pennsylvania law was committed subsequent to the travel because the scheme was abandoned "in advance" of any horse actually being drugged, implying that leading a horse to drugged water is permissible so long as one does not make him drink. Griffin's difficulty is threefold: (1) as above indicated, many if not all of Griffin's post-travel conversations were intended to further, not to terminate, the fraudulent scheme in Pennsylvania; (2) Griffin sent two horses ⁶ and his lieutenant to Pennsylvania after the travel and in furtherance of the scheme; and (3) it is sufficient that the travelers, under Griffin's pre- and post-travel direction, attempted in Pennsylvania to "promote ... or facilitate the promotion ... of any unlawful activity." 18 U.S.C. 1952(a). ⁷ The activity promoted, drugging race horses, was unquestionably unlawful under Pennsylvania law. 18 Pennsylvania Consolidated Statutes Secs. 4109 and 7102.

The government was not required to prove that either an actual or attempted drugging actually occurred. As the court stated in United States v. Jones, 642 F.2d 909, at 913 (5th Cir.1981):

[T]he facilitating act in the other state need not be unlawful itself. As long as the interstate travel ... and the subsequent facilitating act make the unlawful activity easier, the jurisdictional requisites under Sec. 1952 are complete. ⁸

The evidence was thus fully sufficient to support the conviction under Count V of the indictment.

(c) Conspiracy

Griffin says his conspiracy conviction cannot stand because the evidence is insufficient to support his convictions on the substantive counts. The argument fails on two scores: (1) as above indicated, the evidence was not insufficient, and (2) the crime of conspiracy is an offense separate, distinct, and independent from the outcome on substantive counts properly brought. United States v. Feola, 420 U.S. 671, 694, 95 S.Ct. 1255, 1268, 43 L.Ed.2d 541 (1975); Iannelli v. United States, 420 U.S. 770, 777 & n. 10, 95 S.Ct. 1284, 1289 & n. 10, 43 L.Ed.2d 616 (1975); Pinkerton v. United States, 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946); United States v. Ocanas, 628 F.2d 353, 361-362 (5th Cir.1980); United States v. Beil, 577 F.2d 1313, 1315 n. 2 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979); United States v. Carman, 577 F.2d 556, 567 n. 12 (9th Cir.1978). ⁹

(2) Effective Assistance of Counsel

Griffin, of course, states this issue in terms of whether he was denied his Sixth Amendment right to effective assistance of counsel, asserting numerous failures (to object to hearsay testimony, to renew the motion for acquittal at trial's end, to move for suppression or object to introduction of Griffin's taped conversation with Ostrander, and to call a witness). At the threshold, however, the issue is more properly stated as whether effective assistance of counsel may be raised for the first time on direct appeal.

In United States v. Stephens, 609 F.2d 230, 234 (5th Cir.1980), a decision binding on this court, ¹⁰ it was reaffirmed that effective assistance of counsel may not be considered an issue before the court on direct appeal:

The law of this...