U.S.A. v. Riddle, Turnage, Altshuler

• Decision Date: 01 February 2001
• Docket Number: 99-3406,Nos. 99-3405,99-3439,s. 99-3405
• Citation: 249 F.3d 529
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Jeffrey Riddle (99-3405); Lavance Turnage (99-3406); Bernard Altshuler (99-3439), Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 529

249 F.3d 529 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Jeffrey Riddle (99-3405); Lavance Turnage (99-3406); Bernard Altshuler (99-3439), Defendants-Appellants.

Nos. 99-3405, 99-3406, 99-3439.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: February 1, 2001

Decided and Filed: May 4, 2001

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 97-00385, Kathleen McDonald O'Malley, District Judge. [Copyrighted Material Omitted] Frank J. Marine, UNITED STATES DEPARTMENT OF JUSTICE, ORGANIZED CRIME & RACKETEERING SECTION, Washington, D.C., Julia J. Stiller, Craig S. Morford, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

Albert A. Giuliani, Cleveland, Ohio, for Defendant-Appellant.

John Patrick Parker, Cleveland, Ohio, for Defendant-Appellant.

Timothy F. Sweeney, Cleveland, Ohio, for Appellants.

Before: GUY, NORRIS, and SILER, Circuit Judges.

OPINION

ALAN E. NORRIS, Circuit Judge.

Defendants Bernard Altshuler, Jeffrey Riddle, and Lavance Turnage were convicted by a jury of RICO, RICO conspiracy (18 U.S.C. §1962(c) & (d)), and conducting an illegal gambling business (18 U.S.C. § 1955), and Riddle and Turnage of committing a violent crime in furtherance of racketeering (18 U.S.C. §1959). They appeal on several grounds. They argue that the district court erred when it permitted them to be absent during voir dire, and they attack their RICO and violent crime convictions on the grounds that there was an insufficient connection with interstate commerce. They also claim that the evidence was insufficient to support certain counts against them and that the district court erred when it allowed the testimony of a witness after the government had concluded a plea bargain with him, when it did not give a conspiracy withdrawal jury instruction, and when it sentenced them without presentence reports. We affirm the district court.

Because resolution of defendants' issues concerning their voir dire absence and the interstate commerce requirements may have precedential value, those issues will be addressed below. The remaining issues raised by defendants are addressed in an unpublished appendix to this opinion.

I.

This is a case about three actors in the Lenine Strollo branch of La Cosa Nostra (LCN) in Youngstown, Ohio. Strollo ran several types of gambling in the enterprise, including a numbers lottery and dice games, some of which were played after-hours at several establishments, mainly Sharkey's; Jeff, Butch, and Jeff's; and the Greek Coffee House. These games had operated in Campbell, Ohio, since at least the 1950s, and Strollo became more involved as his political influence in the community grew, until he gained sole control after his release from prison in 1991.

Strollo came to rely on defendant Altshuler and another associate named Lawrence Garono in the gambling enterprise. Altshuler ran or supervised most dice games and "stag" parties (games to raise money for a particular cause or event) when he was not in prison, and in the mid-1990s when he was released from prison, Altshuler took control of the ailing gambling business, in part because he suggested he would be able to attract African-American drug dealers to the tables. To assist him, Altshuler recruited Riddle and Turnage, who were accepted in the drug dealing community. Together they converted Sharkey's into a nightclub with a craps game, but the undertaking failed. They had more success with gambling at the restaurant called Jeff, Butch, and Jeff's.

While Strollo built his business, Ernie Biondillo, as a self-designated successor to Strollo's murdered rival, began to conduct gaming events. Strollo felt that he was not getting his fair share, and he decided to kill Biondillo, delegating the task to Garono and then to Altshuler, who gave the job to Riddle. Riddle in turn involved Turnage. Riddle, Turnage, and another associate, George Wilkins, surveilled Biondillo and set out one day with guns to kill him; their efforts came to naught when they could not find Biondillo. Riddle subsequently decided he should not be present at the shooting and found a substitute; Turnage, Wilkins, and the substitute met on June 3, 1996, blocked off Biondillo's car, and shot and killed him.

Members of the enterprise had been enjoying a certain amount of protection from the Mahoning County prosecutor, who unexpectedly lost the election in 1996 to a former police officer named Paul Gains. In light of several pending cases against enterprise members, including a case against Turnage, Strollo's contact with the prosecutor's office stated that the only solution was to kill Gains before he assumed office. Strollo passed the word on to Altshuler, who replied, "We'll take care of it." Riddle enlisted Turnage and Wilkins, and in October 1996, the trio went to find Gains at a restaurant in Youngstown to kill him; they had to abandon their plan, however, when they found the area full of police. Turnage gave up on having his case fixed, pleaded guilty to robbery, and went to jail. Riddle then recruited two other men to kill Gains, but they bungled the attempt, leaving Gains wounded but alive.

On December 10, 1997, the government filed an indictment against Strollo and nineteen of his associates, later replaced by a superseding indictment against thirteen defendants. The indictment charged Altshuler, Riddle, and Turnage with violations of 18 U.S.C. § 1962(c) and (d) (RICO) and § 1955 (illegal gambling business), and Riddle and Turnage with violation of 18 U.S.C. § 1959 (violent crime in aid of racketeering).

On December 2, 1998, in a pretrial conference, the parties requested the use of a juror questionnaire. The government asked for an anonymous jury, and Strollo's counsel asked that all potential jurors be questioned individually in the court's chambers. The court noted that United States Marshals would have to accompany defendants wherever they went, and the Marshals' presence in the court's chambers might prejudice defendants by suggesting to potential jurors that defendants were dangerous. Counsel responded that it would be in defendants' interest to waive their right to be present in order to preserve the benefit of individual questioning without the potential prejudice of the Marshals' security. The court agreed and instructed the lawyers to tell the court in writing by January 7, 1999, if the defendants objected to this procedure. There were no objections, and at a February 11, 1999, meeting, defense counsel discussed the proposed voir dire procedure with their clients, at the court's request, in a holding cell and reported to the court that defendants wished to proceed as agreed. The court issued a written order confirming the waiver.

The prospective jurors then completed under oath a questionnaire of forty-six pages, developed with the input of defense counsel. Counsel agreed to strike a total of sixty-six jurors for cause on the basis of the questionnaires, which were available to defendants during the screening process.

On February 23, 1999, the court began individually questioning the remaining jurors in chambers, one by one, with defense counsel present; the individual voir dire process lasted for three days. Defendants were present in the courthouse on the morning of February 23, but at the start of the afternoon session on that day, defense counsel indicated to the court that defendants requested permission to return to jail until the final stages of the jury selection process. The court, after confirming with counsel defendants' waiver of their right to be in the courthouse, granted defendants' request. On March 1, defendants returned to the courtroom for the exercise of peremptory challenges. These challenges were exercised in side-bar conferences in the open courtroom, where defendants were present.

During the screening of the jurors, the government had concluded a plea agreement with Strollo that gave him twelve to fifteen years in prison in exchange for his testimony against the others, and dropped a forfeiture charge in the amount of ten million dollars, plus various properties. The trial began on March 1, 1999, and Strollo fulfilled his bargain by testifying. On March 12, 1999, Altshuler, Riddle, and Turnage were convicted on all counts and sentenced to life imprisonment. After the jury verdict, the court did not order a presentence report, stating that it had adequate information already from previous proceedings. The court offered to sentence the defendants the following week, but defense counsel agreed to do the sentencing that day. The court gave the counsel time to get the defendants' consent to the sentencing procedure, and counsel made no objections. Defendants were sentenced to life imprisonment without release, with a five-year sentence for illegal gambling to run concurrently. Defendants appeal their convictions and sentences.

II.

A. Voir Dire

Defendants argue that they did not effectively waive their right to be present during voir dire because they did not waive the right in person before the trial court. Defendants are essentially asserting that a trial court must engage a defendant in an on-the-record colloquy before allowing the defendant to absent himself from voir dire, and that failure to do so is a fundamental structural error. We decline to so hold.

A criminal defendant has a constitutional right to be "present at all stages of the trial where his absence might frustrate the fairness of the proceedings[.]" Faretta v. California, 422 U.S. 806, 819 n.15 (1975); United States v. Gibbs, 182 F.3d 408, 436 (6th Cir. 1999). Federal Rule of Criminal Procedure 43 builds on this right and mandates that "[t]he defendant shall be present . . . at every stage of the trial including the impaneling of the jury and the return of the verdict." Fed. R. Crim. P. 43(a). This right is more extensive than that guaranteed by the Constitution. Gib...