U.S. v. Thevis, No. 79-5739

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore KRAVITCH and THOMAS A. CLARK; KRAVITCH
Citation665 F.2d 616
Parties9 Fed. R. Evid. Serv. 1025 UNITED STATES of America, Plaintiff-Appellee, v. Michael G. THEVIS, Alton Bart Hood, Global Industries, Inc., Anna Jeanette Evans, Defendants-Appellants. . Unit B *
Decision Date11 January 1982
Docket NumberNo. 79-5739

Page 616

665 F.2d 616
9 Fed. R. Evid. Serv. 1025
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael G. THEVIS, Alton Bart Hood, Global Industries, Inc.,
Anna Jeanette Evans, Defendants-Appellants.
No. 79-5739.
United States Court of Appeals,
Fifth Circuit.
Unit B *
Jan. 11, 1982.

Page 621

Bobby Lee Cook, Summerville, Ga., Wm. W. Taylor, III, Lawrence A. Katz, Washington, D. C., Edward T. M. Garland, Atlanta, Ga., for Thevis.

Joseph Beeler, Miami, Fla., Steven H. Sadow, Atlanta, Ga., for Global.

Wm. Ralph Hill, Jr., Lafayette, Ga., for Hood.

Edward E. Strain, III, Cornelia, Ga., for Evans.

Dorothy Y. Kirkley, Craig A. Gillen, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and THOMAS A. CLARK, Circuit Judges, and THOMAS **, Senior District Judge.

KRAVITCH, Circuit Judge.

Appellants Michael Thevis and Global Industries, Inc. (Global) were convicted by a jury of violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. Thevis and appellants Anna Jeanette Evans and Alton Bart Hood were convicted of conspiracy to violate the civil rights of Roger Dean Underhill under 18 U.S.C. § 241 by preventing him from testifying at trial. All appellants claim that the trial court erred in several evidentiary rulings, chiefly objecting to the trial court's admission of Underhill's grand jury testimony as a hearsay exception under Fed.R.Evid. 804(b)(5) and the trial court's refusal to grant judicial use immunity to defense witness George Thevis. Appellants also claim that the trial court misconstrued RICO and incorrectly charged the jury; and appellants Thevis, Evans and Hood argue that the conspiracy charged under 18 U.S.C. § 241 is not a crime. Finally, appellants Evans and Hood claim their trials should have been severed, and the evidence was insufficient to convict them of the conspiracy. For the reasons stated below, we affirm the convictions of all defendants.

I. Background

The original indictment in this case, filed on June 10, 1978, named Michael G. Thevis, Global Industries, Inc., Fidelity Equipment Leasing Corporation and eight other individuals as defendants. The central allegation was that Thevis and the corporations had conducted an interstate pornography business through a pattern of racketeering activity. Roger Dean Underhill, a principal witness before the grand jury, was named as an unindicted co-conspirator. On October 25, 1979, the grand jury returned a superseding indictment which added a charge that Thevis, Jeanette Evans and Bart Hood conspired to murder Underhill in order to prevent his testimony. Seven of the original defendants were not reindicted and their cases were dismissed. Only Counts One, Two and Ten of the indictment are relevant to this appeal. 1 Count One alleged a substantive RICO violation and Count Two alleged conspiracy to violate RICO. 2 Count Ten, the charge added by the superseding indictment, alleged a conspiracy among Thevis, Evans, and Hood to deprive Underhill of his civil rights in violation of 18 U.S.C. § 241. The trial lasted approximately eight weeks and produced a

Page 622

voluminous record. 3 Our recitation of the facts is therefore limited to only those absolutely essential to this appeal.

In the 1960's, Michael Thevis organized and controlled a group of corporations whose principal purpose was the profitable distribution of adult books and films. Underhill met Thevis in the fall of 1967 and became a Thevis employee. Together, Underhill and Thevis developed a profitable peep-show machine that was manufactured and distributed by two Thevis-controlled corporations, Automatic Enterprises and Cinematics. The government offered evidence as to five separate acts of racketeering in the conduct of this peep-show enterprise. These acts were the murders of two competitors in the adult entertainment business, two separate acts of arson against competitors, and the murders of Underhill and a bystander, Isaac Galanti. 4

The Hanna Murder

Kenneth "Jap" Hanna owned several adult book stores in Atlanta. On November 13, 1970, Thevis called Underhill at 8:30 a. m. and told him to come to work immediately. When Underhill arrived, Thevis stated that he had shot Ken Hanna and left the body in the trunk of Hanna's car in Thevis' warehouse. In his haste to dispose of the body, Thevis had left the car keys in Hanna's pocket, locked in the trunk. Thevis asked Underhill, a trained locksmith, to open the trunk and retrieve the keys. Thevis and Underhill then drove the car containing Hanna's body to the Atlanta airport parking lot and left it. Afterwards, Underhill took various steps to dispose of any incriminating evidence, including burning the moving pad on which Hanna's body had lain and replacing several bloody floor boards in the warehouse. In addition, he bought a welding torch outfit and melted the gun, the trunk lock, Hanna's car keys, some Mexican coins which had been in Hanna's possession, and a screwdriver. That night Underhill dumped the melted objects and the bloody boards in the Chattahoochee River.

During an interview with the FBI in 1977 Underhill showed agents the spot on the Chattahoochee where he disposed of the melted objects. A government diver found a pan containing melted objects. Analysis of the melted debris revealed two General Motors car keys, some Mexican coins, and a screwdriver on which appeared the letters "R", "D", and the beginning of either a capital "U", "B", or "W".

The Mayes Murder

Jimmy Mayes was employed by Thevis and Underhill to build peep shows. Underhill paid Mayes by giving him a percentage of his stock in the peep-show corporations. When Thevis took away half of Underhill's and Mayes' shares, Mayes became enraged and threatened to kill Thevis. In December of 1972, Thevis ordered Underhill to kill Mayes and gave him a gun for that purpose. Underhill had a chance to shoot Mayes one night, but could not pull the trigger. At Thevis' instruction, Underhill then hired Bill Mahar to do the job. Mahar told Underhill that he was going to kill Mayes by putting a pipe bomb in his truck. The bomb went off just before midnight, and literally blew Mayes to pieces.

Thevis was at this time in the hospital due to injuries sustained in a motorcycle accident. On the day of the murder, Underhill advised Thevis that the explosion would take place that night. After the explosion, Underhill went to the scene and found a piece of bone and a gold pin. He showed this evidence to Thevis in the hospital; Thevis said that he planned to make the bone into a paperweight. The day after the murder, Thevis instructed his nephew, Mann Chandler, to give Underhill money from Thevis' safe to pay Mahar.

The Louisville Arson

Nat Bailer, a competitor of Cinematics in the peep-show industry, owned a warehouse

Page 623

in Louisville, Kentucky. Thevis ordered Underhill to go to Louisville and burn the warehouse. On the weekend of April 27, 1976, Underhill drove to Louisville and, with two Thevis employees, Clifford Wilson and Robert Mitchum, set fire to the warehouse. Returning from Louisville, Underhill called Thevis and reported their success. The former Mrs. Underhill corroborated Underhill's out of town trip on April 27, 1970. She also noticed that he was dirty and smokey when he returned and remembered that he wanted to get rid of the clothes he was wearing.

The Fayetteville Arson

In 1972, Thevis operated an adult bookstore in Fayetteville, North Carolina. Herman Womack owned a competing bookstore just one block away. Thevis told Underhill to burn down the competitor. On September 19, 1972, Underhill and Mahar drove to Fayetteville and accomplished the arson by drilling a hole in the roof of the building, pouring gasoline down into the interior, and igniting it with a water pistol used as a flame thrower. Afterwards Thevis gave Underhill $1,500 with which he paid Mahar for the successful arson.

The Underhill-Galanti Murders

Under duress from Thevis, Underhill sold his interest in Cinematics to Thevis in 1971, but remained on Thevis' payroll (at about $50 per week) until Underhill went to prison in 1974. In 1975 Underhill filed a civil RICO suit against Thevis. While Underhill was in prison, the government sought unsuccessfully to get Underhill's cooperation in its investigation of Thevis. Underhill was paroled in January 1977 without having reached any specific agreement with the government. Following his parole, Underhill was granted immunity and began to cooperate. He gave lengthy recorded statements to the FBI in January 1977 and testified before a federal grand jury in May 1977. In June 1977, Underhill visited Thevis in the federal prison in Springfield, Missouri. Underhill wore a shoe mike provided by the FBI and recorded his conversation with Thevis. During this conversation Underhill told Thevis of his interviews with the FBI and that he had taken and passed a polygraph examination.

On April 28, 1978, Thevis escaped from the New Albany, Indiana, jail where he was confined during the trial of a civil case arising from the Louisville arson. Soon after his escape, he contacted defendants Evans and Hood. Jeanette Evans, a real estate agent in Marietta, Georgia, was a close personal friend of Thevis. Bart Hood, her cousin, was a detective in the Summerville, South Carolina, police department. Evans and Hood assisted Thevis in establishing several aliases, in obtaining an apartment, a VISA credit card, and safe-deposit boxes.

Hood and Evans requested Dennis Bradley, their mutual cousin, to make silencers for a .38 caliber pistol. Evans also inquired about a silencer for a 30.06 rifle. Bradley made two silencers; he mailed one to Hood in Summerville on October 20, 1978, and Hood picked up the second silencer late in the afternoon on October 25, 1978. Hood normally kept a shotgun and a 30.06 rifle in the trunk of his...

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348 practice notes
  • US v. Smithers, PLAINTIFF-APPELLEE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 6, 1999
    ...States v. Purham, 725 F.2d 450, 454 (8th Cir. 1984) (finding the question is within the expertise of jurors); United States v. Thevis, 665 F.2d 616, 641 (5th Cir. 1982) (reasoning that identification was adequately addressed through cross-examination); United States v. Sims, 617 F.2d 1371, ......
  • State v. Jacob, No. S-91-109
    • United States
    • Supreme Court of Nebraska
    • January 8, 1993
    ...(8th Cir.1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), criticized on other grounds, United States v. Thevis, 665 F.2d 616 (5th Cir.1982) (declarant "was relating facts ... of which he possessed firsthand Other courts have reasoned and held that a hearsay stat......
  • General Acc. Ins. Co. v. Fidelity & Deposit Co., Civ. A. No. 83-3223.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 25, 1984
    ...for by third-party defendants is at odds with the purpose of the statute and not compelled by its language. E.g., United States v. Thevis, 665 F.2d 616 (5th Cir.), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982); United States v. Huber, 603 F.2d 387 (2d Cir.1979), cert. denie......
  • U.S. v. Phillips, No. 98-30968
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 13, 2000
    ...into evidence." 23. The exception is to be "used only rarely, in truly exceptional cases." United States v. Thevis, 665 F.2d 616, 629 (5th Cir. 1982). "[T]he proponent of the statement bears a heavy burden to come forward with indicia of both trustworthiness and probativ......
  • Request a trial to view additional results
348 cases
  • US v. Smithers, PLAINTIFF-APPELLEE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 6, 1999
    ...States v. Purham, 725 F.2d 450, 454 (8th Cir. 1984) (finding the question is within the expertise of jurors); United States v. Thevis, 665 F.2d 616, 641 (5th Cir. 1982) (reasoning that identification was adequately addressed through cross-examination); United States v. Sims, 617 F.2d 1371, ......
  • State v. Jacob, No. S-91-109
    • United States
    • Supreme Court of Nebraska
    • January 8, 1993
    ...(8th Cir.1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), criticized on other grounds, United States v. Thevis, 665 F.2d 616 (5th Cir.1982) (declarant "was relating facts ... of which he possessed firsthand Other courts have reasoned and held that a hearsay statement......
  • General Acc. Ins. Co. v. Fidelity & Deposit Co., Civ. A. No. 83-3223.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 25, 1984
    ...for by third-party defendants is at odds with the purpose of the statute and not compelled by its language. E.g., United States v. Thevis, 665 F.2d 616 (5th Cir.), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982); United States v. Huber, 603 F.2d 387 (2d Cir.1979), cert. denie......
  • U.S. v. Phillips, No. 98-30968
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 13, 2000
    ...of the statement into evidence." 23. The exception is to be "used only rarely, in truly exceptional cases." United States v. Thevis, 665 F.2d 616, 629 (5th Cir. 1982). "[T]he proponent of the statement bears a heavy burden to come forward with indicia of both trustworthiness and probative f......
  • Request a trial to view additional results

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