United States v. Earley, 72-1803.

• Decision Date: 20 July 1973
• Docket Number: No. 72-1803.,72-1803.
• Citation: 482 F.2d 53
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick Henry EARLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

482 F.2d 53 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Patrick Henry EARLEY, Defendant-Appellant.

No. 72-1803.

United States Court of Appeals, Tenth Circuit.

July 20, 1973.

Stephen K. Lester, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.

Peter H. Ney, Englewood, Colo., for defendant-appellant.

Before PHILLIPS, HILL and SETH, Circuit Judges.

ORIE L PHILLIPS, Circuit Judge.

On October 15, 1971, a 12-count indictment was returned in the United States District Court for the District of Kansas against Patrick Henry Earley and Wayne E. Porter.

Count I charged that Earley and Porter, together with 10 other persons who were named as coconspirators, but not named as defendants, were charged with conspiracy to commit offenses against the United States. Count I further charged that the object, purpose and intent of the conspiracy was to "travel in and cause the travel and use of the facilities of interstate commerce with intent to:

"(a) Distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, in which state such acts of arson were committed;

"(b) Commit crimes of violence to further the aforesaid unlawful activity; and

"(c) Otherwise promote, manage, establish, carry on, and to facilitate the promotion, management, establishment, and carrying on the unlawful activity of arson."

We think it will be helpful if we set out the provisions of 18 U.S.C.A. § 1952, as follows:

"§ 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises

"(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, * * * with intent to —

"(1) distribute the proceeds of any unlawful activity; or

"(2) commit any crime of violence to further any unlawful activity; or

"(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

"(b) As used in this section `unlawful activity\' means * * * (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States."

Count III charged that Earley on or about August 11, 1968, traveled "in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to carry on and facilitate the carrying on of the unlawful activity of arson, and did thereafter distribute the proceeds of the unlawful activity of arson, and did thereafter at Wichita, Kansas, continue to carry on the unlawful activity of arson, in violation of 18 U.S.C. 1952."

Count IV charged that Earley on or about November 17, 1968, made a firearm, "to wit: a destructive device as defined by 26 U.S.C. 5845(f), without having first filed with the Secretary of the Treasury or his delegate to make and register the destructive device on the form prescribed by the Secretary or his delegate, as required by 26 U.S.C. 5822(a), in violation of 26 U.S.C. 5861(f)."

Count V charged Earley with possession on or about November 17, 1968, of "a destructive device as defined by 26 U.S.C. 5845(f), which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d)."

Count VII charged that Earley on or about June 30, 1969, "did transport in interstate commerce from Duncan, Oklahoma, to Wichita, Kansas, a firearm, to wit: a destructive device as defined by 26 U.S.C. 5845(f), which had not been registered to him in the National Firearms Registration and Transfer Record as required by Chapter 53 of the Internal Revenue Code of 1954, as amended, in violation of 26 U.S.C. 5861(j)."

Count VIII charged that Earley on or about July 1, 1969, possessed "a firearm, to wit: a destructive device as defined by 26 U.S.C. 5845(f), which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d)."

Count IX charged that Earley traveled in interstate commerce "from Oklahoma City, Oklahoma, to Wichita, Kansas, with intent to carry on and facilitate the carrying on of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and did thereafter at Wichita, Kansas, carry on the unlawful activity of arson by bombing Razook's Thriftway Market, in violation of 18 U.S.C. 1952."

Count X charged that Earley traveled "in interstate commerce from Wichita, Kansas, to Oklahoma City, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to facilitate the carrying on of the unlawful activity of arson, and did thereafter at Oklahoma City, Oklahoma, distribute the proceeds of the unlawful activity of arson, in violation of 18 U.S.C. 1952."

Earley was convicted on Counts I, III, IV, V, VII, VIII, IX, and X, and found not guilty on Counts II, VI, and XI. Therefore, we have not set out what Counts II, VI, and XI charged.

Count XII of the indictment charged that Wayne E. Porter traveled "in interstate commerce from Wichita, Kansas, to Perry, Oklahoma, with intent to distribute the proceeds of an unlawful activity, to wit: arson, in violation of the laws of the State of Kansas, wherein the arson was committed, and to carry on and facilitate the carrying on of the unlawful activity of arson, and did thereafter distribute the proceeds of the unlawful activity of arson, in violation of 18 U.S.C. 1952."

The case came on for trial on May 1, 1972. Earley appeared in person and by his counsel, Archibald Hill. Porter appeared in person and by his counsel, William C. Farmer and Everett C. Fettis. Mr. Hill informed the court that his home and his automobile had been burglarized early that morning, and that the papers he had prepared for use during the trial had been taken. He moved for a further continuance, which was denied.

The original transcript of the record of the trial consists of 10 volumes, which were filed in lieu of an appendix. If, instead of filing all of the original record, an appendix had been filed, much immaterial matter could have been omitted, and it would have greatly reduced the work of the court.

On the fifth day of the trial, out of the sight and hearing of the jury, Porter pleaded guilty to Count I, the conspiracy count, and Count XI was dismissed as to him and Count XII was dismissed.

After such pleas and dismissals, the jury were returned to the box and the court advised them that Mr. Porter had entered a plea of guilty; that he had conflicting engagements for Monday, May 8, 1972, and that the trial would be recessed until Tuesday, May 9, 1972.

The court very carefully gave the jury the precautionary instruction usually given when there is a recess of a trial.

On Tuesday, May 9, 1972, the trial was resumed, and immediately after the jury had entered the box, the trial judge gave them this further precautionary instruction:

"The jury will recall that immediately preceding the recessing of the trial last Friday afternoon the Court at that time advised you that the Defendant Wayne Porter had entered a plea of guilty to count one of the indictment, that is, the conspiracy count, before the Court and that the Court had accepted it.

"I further specifically instruct you at this time that this jury may not in any way, in the smallest degree, consider the plea of the defendant Porter as creating any inference or aspect of guilt of the defendant Patrick Henry Earley as to the conspiracy charge set forth in count one of the indictment to which the defendant Porter has entered his plea of guilty, or as to the guilt of the defendant Patrick Henry Earley on any other count of the indictment with which he is charged in this case.

"The jury is reminded that the indictment charged numerous individuals, specifically ten persons, with being joint conspirators, and the admission of the Defendant Porter, as one of the alleged co-conspirators, cannot be considered in determining the guilt or innocence of the defendant Patrick Earley on any and all counts. You must consider only evidence produced in this courtroom from the witnesses in determining the guilt or innocence of the defendant Earley on each count upon which he is charged."

The trial judge reiterated the above-quoted instruction in his general charge to the jury.

The evidence clearly warranted the jury in finding beyond a reasonable doubt the following facts:

Porter was the owner of several grocery stores situated in Wichita, Kansas. Three of such stores, respectively, known as University IGA Store, Grove IGA, and 21st Street IGA, were located in the northeast section of Wichita. Porter hired Earley, then a resident of Oklahoma, to set on fire or cause to be set on fire during the period extending from July 1968 through July 1969, and during a time of racial unrest in Wichita, the University IGA Store and two stores owned by Porter's competitors. Earley, in turn, hired other persons to set on fire or assist him in setting on fire such three stores.

Such three stores were, in fact, set on fire by persons so hired by Earley, or were set on fire by Earley with the assistance of such other persons. Thus, three acts of arson were committed by Earley, as that offense is defined by the laws of Kansas.

Also, there was ample evidence to justify the jury in finding beyond a reasonable doubt that Earley committed the offenses charged in Counts I, III, IV, V, VII, VIII, IX, and X of the indictment. Earley does not challenge the sufficiency of the evidence adduced to...