U.S. v. Watchmaker

• Decision Date: 30 May 1985
• Docket Number: No. 83-3425,83-3425
• Citation: 761 F.2d 1459
• Parties: 18 Fed. R. Evid. Serv. 330 UNITED STATES of America, Plaintiff-Appellee, v. Ronald WATCHMAKER, a/k/a "Arab"; Christopher Keating, a/k/a "Louie the Lip"; Eugene Michael Marcaccio, Jr., a/k/a "Mad Mike"; Wilson Tony Harrell, a/k/a "Roadblock", a/k/a "RB"; Roger White, a/k/a "Mighty Mite"; Harry Ruby, a/k/a "Harpo"; Kenneth Hart, Charles Gibson, Scott Seaver, a/k/a "Buzzard"; Edward L. Lackey; Charles E. Graves, a/k/a "Vulcher", a/k/a "Vulture", Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1459

761 F.2d 1459

18 Fed. R. Evid. Serv. 330

UNITED STATES of America, Plaintiff-Appellee, v. Ronald WATCHMAKER, a/k/a "Arab"; Christopher Keating, a/k/a "Louie the Lip"; Eugene Michael Marcaccio, Jr., a/k/a "Mad Mike"; Wilson Tony Harrell, a/k/a "Roadblock", a/k/a "RB" Roger White, a/k/a "Mighty Mite"; Harry Ruby, a/k/a "Harpo"; Kenneth Hart, Charles Gibson, Scott Seaver, a/k/a "Buzzard"; Edward L. Lackey; Charles E. Graves, a/k/a "Vulcher", a/k/a "Vulture", Defendants-Appellants.

No. 83-3425.

United States Court of Appeals Eleventh Circuit.

May 30, 1985.

David R. Fletcher, Jacksonville, Fla., for Watchmaker.

Bruce J. Greenspan, Jacksonville, Fla., for Keating.

Randall J. Silverberg, Jacksonville, Fla., for Marcaccio.

Robert Stuart Willis, Jacksonville, Fla., for Harrell.

Robert B. Persons, Jr., Jacksonville, Fla., for White.

Ralph J. Humphries, Jacksonville, Fla., for Ruby.

John P. Stone, Jr., Jacksonville, Fla., for Hart.

Hugh Cotney, Jacksonville, Fla., for Gibson.

Brent D. Shore, Jacksonville, Fla., for Seaver.

Eugene F. Murphy, Jacksonville, Fla., for Lackey.

Jack M. Schemer, Jacksonville, Fla., for Graves.

John E. Steele, Asst. U.S. Atty., Jacksonville, Fla., Lee Wm. Atkinson, Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

JOHNSON, Circuit Judge:

On October 6, 1982, a federal grand jury returned an indictment against 16 "patchwearing" and probate members of the Outlaw Motorcycle Club. Charges were brought under provisions of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C.A. Sec. 1962(c) and (d), alleging substantive violation of and conspiracy to violate the statute. Fourteen of these defendants were tried before a jury between February 8, 1983, and March 29, 1983. On April 1, 1983, the jury returned its verdicts, finding 13 of the 14 defendants guilty as charged. One defendant was acquitted of both the substantive and the conspiracy charges. Sentencing took place on July 1, 1983, and individualized sentences of eight to forty years were imposed. Eleven of the 13 defendants thus convicted are joined in this appeal.

I. The Facts

Testimony at the trial revealed that the Outlaws, an enterprise with chapters throughout the Southeast, conducted its affairs through the sale of drugs and the organization of prostitution rings. The Tampa and Jacksonville chapters, of which appellants were members, were connected in particular with the sale of marijuana, cocaine, and quaaludes and with a prostitution ring in Meridian, Mississippi. The prostitutes, or "old ladies," of the Outlaws were among the key witnesses at the trial. These women, who were bought and sold among the members of the Club (which received the proceeds from their activities), testified concerning their prostitution and their relationship with the Outlaws. The prostitutes also testified to the drug-selling ventures of the Outlaws, as did several former Outlaws who were no longer members of the Club, and a number of government investigators. Additional evidence was acquired by means of electronic surveillance, some of it conducted pursuant to state drug enforcement efforts. Among the predicate offenses with which appellants were charged were: the shooting of three policemen at the Tampa Clubhouse, the murder of one Ricky Jones, the extortion of Nora Henson and Susan Beckworth (two "old ladies" of the Club), the organization and maintenance of the Meridian prostitution ring, and the conduct of drug traffic in Oklahoma City and Jacksonville. Other relevant facts will be presented in connection with those claims to which they apply. ¹

II. District Court's Conference with Juror Merkison

On March 30, 1983, one day after the jury began its deliberations, the jury sent a note to the court asking if it could have "a private discussion with you based solely on the fact of jurors' participation," or if one juror could "request a private discussion with you based on his or her need to be dismissed." The court called the jury to the courtroom to find out if the juror in question had "a private medical problem which the juror may be embarrassed to announce in front of everyone," or if it "has something to do ... a failure to cooperate." On learning that the basis of the problem was not medical, the court stated that it could not meet with the juror in private and sent the jury back to its deliberations. Early on March 31, 1983, the court revealed that Juror Merkison had requested a private meeting with the court "because of personal reasons for being excused from jury duty." The court asked the foreman of the jury whether the problems were being worked out and deliberations could continue; the foreman replied that "things have gone a lot smoother today, this morning, than they have in the past two days." The court then asked whether any juror desired to meet with him privately. Juror Merkison raised her hand. Over the objections of appellants' counsel, the court asked the jury to cease its deliberations and subsequently met with Juror Merkison in his chambers. A transcript of the conversation was prepared and was distributed to all parties after the meeting. ²

During this meeting Juror Merkison expressed her fear of retaliation on the part of appellants or other Outlaws and referred anecdotally to the way this fear had affected others. (She stated that "Gloria, she changed--with this grand jury, she's changed her phone number and she's not even living at her house, she's in fear" and added that "the guy mentioned yesterday he allows no one--he requested no one pick his kid up from school ..."). The court emphasized the responsibility that had been placed in the jury and the need for Juror Merkison to return to deliberations and to attempt, with the others, to reach a verdict. After the meeting Juror Merkison returned to the jury, which reached a verdict on April 1, 1983. Appellants object to the meeting on three grounds: 1) the court's entreaty to return to deliberations and reach a verdict was tantamount to a supplemental Allen charge instructing the jury that it was obliged to reach a verdict; 2) the court erred in not holding a hearing on the possibility of juror bias when it learned from Juror Merkison that jurors had spoken of their fear of retaliation; and 3) the exclusion of appellants and their counsel from the meeting violated their constitutional right to be present at all trial proceedings.

Appellants' first claim has little merit. This Circuit has declined to reject the Allen instruction. See United States v. Bailey, 468 F.2d 652 (5th Cir.1972), aff'd en banc, 480 F.2d 518 (1973). More importantly, the record is replete with indications that the court had no intention, nor did its moderate words create the effect, of administering an Allen instruction. First, the setting was not one in which the court sought to "dynamite" a stubborn or stymied jury, but one in which the court sought to provide guidance to an individual juror with personal problems. Second, the court's entreaty to Juror Merkison to "render a fair verdict, whatever that might be" or "go back in there and work with those other eleven people and try to render a verdict" did not approach the force of the language condemned in United States v. Jenkins, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), which instructed jurors that "[y]ou have got to reach a decision in this case." 380 U.S. at 446, 85 S.Ct. at 1060. Finally, the court's advice to Juror Merkison did not contain any of the elements of the Allen instruction held to be most troublesome: the suggestions that a juror should not trust her own opinions in deliberation or that a member of the jury who found herself in the minority should reexamine her position. United States v. Bailey, supra.

Appellants' second argument is no more compelling than the first. Not only is the procedure to be used in investigating alleged juror misconduct within the discretion of the trial court, United States v. Yonn, 702 F.2d 1341 (11th Cir.), cert. denied, sub nom. Weeks v. United States, --- U.S. ----, 104 S.Ct. 283, 78 L.Ed.2d 261 (1983), but the failure to hold a hearing constitutes an abuse of discretion only where there is evidence that the jury was subjected to influence by outside sources. United States v. Chiantese, 582 F.2d 974 (5th Cir.1978), cert. denied, sub nom. Cerrella v. United States, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979). Discussions among the jurors as to their fear of the defendants are not inappropriate, so long as such discussions do not lead them to form an opinion of the defendants' guilt or innocence of the offenses charged. United States v. Yonn, supra. There is no evidence that the jurors' fear created any danger of this result. Juror Merkison expressed to the court her confidence that she could reach a verdict on the evidence; moreover, the jury ultimately convicted 13 of the 14 defendants, a result which hardly betrayed the influence of a fear of retribution. ³

Appellants' final claim, that their constitutional right to be present during the trial was infringed by their exclusion from the ex parte conference, merits closer attention. The Supreme Court recently considered a similar claim in United States v. Gagnon, --- U.S. ----, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985), rev'g United States v. Gagnon, 721 F.2d 672 (9th Cir.1983). In Gagnon, a juror had become alarmed when he noticed one of the defendants in a criminal conspiracy trial making sketches of the jurors. An in camera conference was subsequently held between the judge, the juror and the defendant's lawyer, at which the judge assured the juror that though the defendant was an artist and the sketching reflected no danger, the practice had been stopped. No objection was raised to the absence of the defendants from the conference. The Court concluded that...