U.S. v. Schell, 84-5337

• Decision Date: 16 October 1985
• Docket Number: No. 84-5337,84-5337
• Citation: 775 F.2d 559
• Parties: UNITED STATES of America, Appellee, v. George W. SCHELL; John B. Cain, Jr., a/k/a John Boy; Thomas R. Stevens, a/k/a Hyper; and Freda Virginia Gallo Wilson, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 559

775 F.2d 559

UNITED STATES of America, Appellee, v. George W. SCHELL; John B. Cain, Jr., a/k/a John Boy Thomas R. Stevens, a/k/a Hyper; and Freda Virginia Gallo Wilson, Appellants.

No. 84-5337.

United States Court of Appeals Fourth Circuit.

Argued July 15, 1985.

Decided Oct. 16, 1985.

Douglas A. Cornelius, Clarksburg, W.Va., William F. Byrne, John W. Cooper, Parsons, W.Va., Brent Beveridge, Fairmont, W.Va. (Matthew H. Fair, Elkins, W.Va., on brief) for appellants.

William A. Kolibash, U.S. Atty., Wheeling, W.Va., Stephen R. Cochell, Sp. Asst. U.S. Atty., Detroit, Mich., for appellee.

Before HARRISON L. WINTER, Chief Judge, and WIDENER and K.K. HALL, Circuit Judges.

K.K. HALL, Circuit Judge:

George W. Schell, John B. Cain, Jr., Thomas R. Stevens, and Freda Virginia Gallo Wilson appeal from their jury convictions of numerous crimes, including violations of the Racketeer Influenced Corrupt Organization Act ("RICO"), 18 U.S.C. Sec. 1961, et seq.; conspiracy to distribute and the distribution of controlled substances, in violation of 21 U.S.C. Sec. 846; and violations of the Travel Act, 18 U.S.C. Sec. 1952. We affirm in part and reverse in part.

I.

In April, 1983, Cain, Wilson, and Frank Maley, went together to the home of Clarksburg, West Virginia, attorney David A. Jividen to ask Jividen to represent Cain with respect to an ongoing grand jury investigation of a drug organization in northern West Virginia. Maley informed Jividen that a grand jury subpoena had been served upon Cain and Cain told Jividen that he wished to invoke his fifth amendment privilege against self-incrimination. Wilson stated to Jividen that her son, John Edward Wilson, had been wrongfully subpoenaed, that they were all innocent of any wrongdoing, and that she could not understand the reason for the subpoenae. Jividen replied that he was not sure if he would represent Cain but promised to contact the federal authorities on Cain's behalf. Thereafter, Jividen notified the United States Attorney that Cain intended to assert the fifth amendment and was informed that Cain would be released from his grand jury subpoena.

Jividen then telephoned Cain and advised him that if he wished to invoke the fifth amendment, he did not have to appear before the grand jury. Jividen also informed Cain that if he wanted to speak to Jividen further about the matter, they could set up an appointment to go over the details of the case. After explaining that any employment relationship between them had terminated, Jividen informed Cain of the amount due for services rendered and requested that Cain make payment that day. Cain complied with that request.

After speaking with Cain, Jividen agreed to represent Kimberly Lindsey when she appeared before the same grand jury. ¹ That same day, Jividen was contacted by Freda Wilson, who also requested representation in connection with a related grand jury subpoena. Before agreeing to represent Wilson, Jividen discussed the matter with Lindsey, who assured him that neither she nor Wilson had anything to hide, that no type of conflict existed, and that she had no objection to Jividen's representation of Wilson.

Later that day, Cain approached Jividen about representing his brother, Steve Cain, before the grand jury. Jividen initially informed appellant that he could not represent his brother, because he had already agreed to represent two other individuals before the same grand jury. Jividen agreed, however, to contact the United States Attorney's Office in order to find out whether Steve Cain's grand jury appearance was required, and he did so.

Jividen met with Lindsey and Wilson when the grand jury convened on April 26, 1983. He spoke with Wilson before she testified and again during a break in her testimony. Jividen also talked with Steve Cain before he entered the grand jury room and after he gave his testimony. Following their grand jury appearances, Jividen had no further contact with Lindsey, Wilson, or Steve Cain. He also had no further contact with John Cain.

Less than four months later, on August 8, 1983, Jividen was employed as an Assistant United States Attorney for the Northern District of West Virginia, and, on November 13, 1983, was designated as the Northern District of West Virginia Coordinator for the Presidential Narcotics Task Force. Before beginning his employment with the United States Attorney's Office, Jividen informed the United States Attorney that he had previously represented John Cain. After joining the United States Attorney's Office and learning that Wilson was a possible target of a grand jury investigation, Jividen also notified the United States Attorney of his prior representation of Freda Wilson, Kimberly Lindsey, and Steve Cain. Jividen was informed that he would not participate in the gathering of evidence against Wilson, Lindsey, or the Cain brothers. In addition, all other Assistant United States Attorneys and administrative agents were advised that Jividen was not to participate in the government's cases against Wilson, Lindsey, or the Cains. Jividen subsequently appeared before the grand jury in his capacity as Assistant United States Attorney. ²

Subsequently, appellants and thirty-five others were charged in a 465-page, 344-count indictment. ³ The indictment alleged the existence of an associated-in-fact RICO enterprise. It charged that appellants participated in a RICO enterprise run by Carl Lee Gallo, John Gallo, unindicted coconspirator Rudolph Zaccagnini, and others. The indictment alleged that Carl Lee Gallo controlled an enterprise consisting of separate units of persons, including appellants, devoted to the distribution of methamphetamine, LSD, cocaine, and marijuana. Appellants were charged, inter alia, with substantive violations of RICO (Count 1), conspiracy to commit RICO violations (Count 2), conspiracy to distribute methamphetamine, a Schedule II controlled substance (Count 333), and violations of the Travel Act.

Before trial, the district court granted a trial management motion by the government, ordering that the four appellants be tried separately from the other individuals charged in the indictment. The district court limited the government's evidence under Count 2 (conspiracy to commit RICO violations) to a consideration of twenty-nine charges and thirty-five overt acts listed. Following the district court's trial management order, appellants Schell, Cain, and Stevens filed pre-trial motions for severance, which were denied. In addition, Schell filed a pre-trial motion to dismiss all counts against him on the ground of double jeopardy, due to his previous conviction in New Jersey of conspiracy to manufacture and to possess with intent to distribute methamphetamine. This motion was also denied by the trial court.

Schell, Cain, Stevens, and Wilson filed further motions to dismiss the indictment against them and/or to disqualify the United States Attorney's Office from further participation in the case, maintaining that there had been a conflict of interest and that Jividen had been an unauthorized person to appear before the grand jury. They based these claims on Jividen's prior representation of John and Steve Cain, Wilson, and Lindsey. A number of evidentiary hearings were held on the motions, at which time Jividen, John Cain, and Wilson, among others, testified. Jividen stated that he did not know of any incriminating evidence against John Cain or Freda Wilson. He asserted that he was not aware of the evidence to be presented against them nor of the acts which comprised the charges in the indictment.

Cain testified that he had told Jividen that he had driven a taxi for the Gallos for nineteen or twenty years. He stated that he had further informed Jividen that he had used drugs with the Gallos. According to Cain, he discussed matters with Jividen that he had not discussed with anyone but his present attorney.

Wilson said that she did not tell Jividen anything about being involved in a criminal act of any kind. She also testified that she did not say anything to the attorney about her son being involved in any type of criminal activity. Wilson stated that her primary point of discussion when she spoke with Jividen dealt with her concern that her son was being harassed by the authorities.

In an affidavit which she filed with the district court, Lindsey stated that she was directed by Freda Wilson and Wilson's son to go to Jividen, and that she was specifically instructed to tell him: (1) that she wanted to assert the fifth amendment when called before the grand jury; and (2) that she had no knowledge whatsoever of, or involvement in, the sale or distribution of controlled substances in the Clarksburg, West Virginia, area. She stated that she did not tell Jividen anything about her criminal involvement or the criminal involvement of anyone else. Lindsey said further that following their grand jury testimony, she talked with Wilson and Steve Cain about their testimony and they all agreed that none of them had told Jividen anything about the sale or distribution of controlled substances.

Following the hearings, the district court ruled that there was no impropriety on Jividen's part or on the part of the United States Attorney's Office, and that "there was not an unauthorized person before the Grand Jury." The district court, however, ordered Jividen and his wife, Assistant United States Attorney Betsy C. Steinfeld, not to participate in cases in which Wilson and Cain were defendants, witnesses, or potential witnesses.

At trial, the evidence established that Rudolph Zaccagnini controlled cocaine distribution for Carl Lee Gallo, and John Gallo controlled methamphetamine distribution for the Gallo organization. According to the trial testimony, Schell met with John Gallo twice in 1982 and the two of them went to see Carl Lee Gallo on one of those occasions. Toll records of United Taxi, Inc. demonstrated frequent telephone contact...