U.S. v. Sanders
| Citation | 962 F.2d 660 |
| Decision Date | 05 May 1992 |
| Docket Number | Nos. 90-2590,s. 90-2590 |
| Parties | 35 Fed. R. Evid. Serv. 840 UNITED STATES of America, Plaintiff-Appellee, v. Fred SANDERS, Robert L. Stephenson, Fred J. Tilford, Isaiah E. Clayton, John A. Carpenter, Phillip M. Blackman, Everett Gully, Clarence G. Wilson, Orville Stewart, Defendants-Appellants. to 90-2602. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joel D. Bertocchi, Asst. U.S. Atty. (argued), United States Crim.Div., Barry R. Elden, Asst. U.S. Atty., United States Crim. Receiving, Appellate Div., Chicago, Ill., for U.S.
Phillip L. Radmer, Chicago, Ill., for Fred Sanders.
Patrick T. Driscoll, Jr., Chicago, Ill., for Robert L. Stephenson.
JoAnne F. Wolfson, Chicago, Ill., for Fred J. Tilford.
Michael B. Mann, Zavislak & Mann, Hillside, Ill., for Isaiah E. Clayton.
Richard C. Leng, Leng, Stowell, Friedman & Vernon, Chicago, Ill., for John A. Carpenter.
Nan R. Nolan, Robinson, Curley & Clayton, Chicago, Ill. (argued), for Phillip M. Blackman.
Standish E. Willis, Chicago, Ill., for Everett Gully.
Everett Gully, pro se.
Paul Bradley, Chicago, Ill. (argued), for Clarence G. Wilson.
John M. Cutrone, Chicago, Ill., for Orville Stewart.
Before CUMMINGS and RIPPLE, Circuit Judges, and REYNOLDS, Senior District Judge. *
This case arises from an FBI sting operation investigating police corruption in Chicago's Second (or "Wentworth") Police District. Defendants/appellants, Fred Sanders, Robert L. Stephenson, Fred J. Tilford, Isaiah E. Clayton, John A. Carpenter, Phillip M. Blackman, Everett Gully, Clarence G. Wilson, and Orville Stewart, were all gamblers or Chicago police officers who participated to varying degrees in a police protection racket. After a two-month jury trial, all were found guilty of racketeering under 18 U.S.C. § 1962(c), and/or racketeering conspiracy under 18 U.S.C. § 1962(d). 1
All nine defendants raise four issues on appeal. First, they contend that the district court violated their constitutional right to an impartial jury when it refused to declare a mistrial after a juror was threatened anonymously and then visited by FBI agents. Second, they allege three errors in the court's handling of the jury instructions: adding an instruction on the coercion defense despite the fact that the defense was never explicitly raised at trial; reinstructing the jury twice with this circuit's Silvern instruction; and supplementing the entrapment defense instructions with the Ninth Circuit pattern jury instruction on the issue. Third, the defendants argue that the Racketeer Influenced and Corrupt Organizations statute's requirement of a pattern of racketeering activity, 18 U.S.C. § 1962(c), is unconstitutionally vague. Fourth, they claim that the district court violated their Sixth Amendment rights when it limited cross-examination of a government witness. In addition, defendant Clarence Wilson separately raises on appeal whether, as a matter of law, he was entrapped into engaging in criminal activity. For the reasons stated below, we affirm all of the convictions.
The facts of this case are complicated. There were multiple defendants, multiple charges, an FBI sting operation that took place over an eighteen-month period, and a jury trial lasting over two months. However, each of the issues raised on appeal is grounded in a discrete set of relatively simple facts. In the interests of economy and clarity, we shall set out the important facts relating to each claim when that claim is discussed. Nonetheless, a brief overview of the Wentworth investigation is in order.
In 1985, the Internal Affairs Division (IAD) of the Chicago Police Department embarked on an investigation of police corruption in the Department's Third District. During the course of this investigation, the Department heard from a gambler, Ricardo Williams, that he was also operating in the neighboring Wentworth district, and that he was paying fifteen to seventeen officers there for protection. After receiving this information, the IAD shifted its focus to corruption in Wentworth. In early 1986, with the help of the FBI, it decided to set up a sting operation in that district. With the cooperation of the district's commander, the IAD and the FBI recruited the district secretary, patrol officer Cynthia White, to pose as a corrupt police officer. Officer White was chosen for this role because the district secretary was traditionally the person through whom a corrupt commander would channel payoffs. Tr. at 373. From March 1986 to September 1987, Officer White orchestrated a "Commander's Club" in Wentworth, through which gamblers and drug dealers in the district supposedly could purchase protection from law enforcement. During this period, she collected numerous bribes, including several from appellants Fred Sanders and Isaiah Clayton, who were local gamblers. She also distributed bribe money to some Wentworth officers, including appellants Robert Stephenson, Clarence Wilson, Fred Tilford, Everett Gully, Phillip Blackman, Orville Stewart, and John Carpenter. Using FBI recording equipment, Officer White taped many of these transactions, as well as other conversations relating to the protection racket.
In the first of their grounds for appeal, defendants claim that the court erred in not granting them a mistrial after a juror had been threatened anonymously, and then visited by the FBI. They argue that, because of the unique facts of this case and the unusual course of jury deliberations, the trial should have been terminated upon occurrence of the threat. In the alternative, they claim that events subsequent to the threat required the court to conduct a voir dire or a post-trial examination of the jury members in order to determine if the verdict had been improperly influenced. The district court's failure to hold this examination, they assert, was reversible error.
Because defendants base their arguments partially on the unusual course of the jury deliberations, we shall discuss in some detail what happened after the jury retired.
After a two-month trial, the eleven-member jury 2 began its deliberations in the late afternoon of Wednesday, January 3, 1990. On the evening of January 3, a Chicago television station aired a tape recording that had been excluded from evidence at trial. The next day, Thursday, January 4, the government requested the court to question the jury on whether any members had seen the tape. The defense objected. Defense counsel was of the view that the jury had been instructed adequately on the matter of extra-courtroom publicity. Tr. at 6266. Nevertheless, the district court granted the motion, ordered the jury back into the courtroom and asked if there was anything the jurors wanted to bring to the court's attention. After a few moments' hesitation, two jurors indicated that they had something to ask the court. The first juror, Juror Matthews, tried to have the court explain the different counts in the indictment. Upon hearing this question, the court cut her off, telling her that she should discuss that question first with the other jurors, and that if she had a question, she should send it to the court in written form. Tr. at 6274-75. The second juror, Juror Layton, told the court that "everybody doesn't agree with the verdict." Tr. at 6275. The court, again, said that that issue was one for the jury, and that the jury must resolve the issue for itself.
On Thursday afternoon, January 4, the court received a note from the foreperson of the jury stating that one juror refused to agree to a definition of entrapment. The note concluded with a request for "any assistance in this problem." Tr. at 6300. The court responded by sending back to the jury the Ninth Circuit pattern instruction on entrapment 3 supplemented with the sentences, Tr. at 6334. Later that afternoon the court received a note from Juror Grimsley stating that he did not believe the government's chief witness and that he could not make a fair decision. The note also contained a request to be dismissed from the case. Tr. at 6343. Upon learning of the note, the defense moved for an immediate mistrial. The court denied this motion, reconvened the jury and read to it the supplemental instruction approved by this court in United States v. Silvern, 484 F.2d 879 (7th Cir.1973) (en banc). 4
Deliberations resumed the next morning, Friday, January 5. Shortly after noon the court received a series of notes from the foreperson complaining of the conduct of one of the jurors. These notes alleged that this juror refused to discuss the law or the case, that he did not have an open mind, and that he was an anarchist. Tr. at 6356-57, 6360, 6362, 6366. In response to these communications, the court inquired by written communication whether the jury could reach a unanimous verdict as to any defendants on any of the counts. A few minutes later, the court received a response from the foreperson stating that only ten jurors could reach a verdict. Tr. at 6370. The court again reconvened the jury and asked each juror individually whether he or she would follow the law as it had been given in the instructions. Each juror replied yes, Tr. at 6377-80, the court reread the Silvern instruction, Tr. at 6389-90, and deliberations resumed.
That afternoon, the court received another note from Juror Grimsley indicating that he would vote to acquit the defendants and reiterating his desire to be dismissed from the jury. Tr. at 6393. The court denied his request to be dismissed and instructed the jury to continue to deliberate. Late on Friday afternoon, the court received word that the jury had reached verdicts on two of the defendants. Tr. at 6402, 6409.
The jury was dismissed for the weekend at approximately 5:35 p.m. About ten minutes later, one of the jurors, Juror Layton, was...
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