United States v. Northrup

• Citation: 482 F. Supp. 1032
• Decision Date: 10 January 1980
• Docket Number: No. CR-LV-79-41,CR-LV-79-41
• Parties: UNITED STATES of America, Plaintiff, v. James David "J. D." NORTHRUP et al., Defendants.
• Court: U.S. District Court — District of Nevada

482 F. Supp. 1032

UNITED STATES of America, Plaintiff, v. James David "J. D." NORTHRUP et al., Defendants.

No. CR-LV-79-41, HEC.

United States District Court, D. Nevada.

January 10, 1980.

Geoffrey A. Anderson, Las Vegas Strike Force, Las Vegas, Nev., for plaintiff.

Howard M. Miller, Las Vegas, Nev., for defendant James David "J. D." Northrup.

DECISION

CLAIBORNE, District Judge.

The within action is before the Court on the Motion for Judgment of Acquittal pursuant to F.R.Cr.P. Rule 29(c) or, in the Alternative, Motion for New Trial pursuant to F.R.Cr.P. Rule 33, filed on behalf of Defendant James Davis "J. D." Northrup.

I

The motion to acquit is before the Court by reason of this procedural posture: On April 17, 1979, the Federal Grand Jury indicted Defendants Northrup, Wilch, Harry Blasey, and Richard Blasey on violations of 18 U.S.C. §§ 1962(c) and (d), and indicted Defendant Schmoutey on violations of 18 U.S.C. §§ 1962(c), 1962(d), 1623, and 29 U.S.C. § 501(c). The matter went to trial as to all of the indicted Defendants, save and except indicted Defendants Gramby Hanley and Thomas Hanley, and at the close of the Government's case-in-chief each of the aforementioned five Defendants entertained Motions for Judgment of Acquittal pursuant to F.R.Cr.P. Rule 29(a) as to all pertinent counts. On November 20, 1979, this Court granted the Rule 29(a) motions in their entirety as to Defendants Schmoutey, Wilch, Harry Blasey and Richard Blasey, and denied Defendant Northrup's Rule 29(a) motion in its entirety. Thereafter, Defendant Northrup presented a defense and his case was submitted to the jury. On November 21, 1979, the jury found Northrup not guilty as to Count I of the indictment (18 U.S.C. § 1962(c)—Conduct of the affairs of a labor union through a pattern of racketeering activity) and guilty as to Count II (18 U.S.C. § 1962(d)—Conspiracy to violate Section 1962(c)).

On a motion under Rule 29(c), the Court must approach the evidence from the standpoint most favorable to the government. 2 Wright, Federal Practice and Procedure, § 465 at 251. If the evidence is such that a reasonable jury-person must necessarily have reasonable doubts about the defendant's guilt, the Court must then grant the motion. But if there is relevant evidence from which the jury could find or infer, beyond a reasonable doubt, that the accused is guilty, the Court must then deny the motion. Likewise, if the Court concludes that either reasonable doubt or no reasonable doubt is possible, I must then defer to the jury's verdict. See 2 Wright, Id., § 467 at 254-257.

Count II of the indictment charges Northrup, along with various other indicted and unindicted co-conspirators, of conspiring to conduct and participate in the conduct of the affairs of Culinary Union Local 226 through a pattern of racketeering activity through, inter alia, arson of buildings and structures and attempted arson of personal property. Count II, ¶ 6 states that it was a further part of said conspiracy that Northrup, among others, would assist and aid Gramby Andrew Hanley in transporting explosive and incendiary devices and in concealing, planting and detonating explosive and incendiary devices. Count II, ¶ 7 states that it was a further part of said conspiracy that Thomas Burke Hanley and Gramby Andrew Hanley would pay and remunerate Northrup, among others, for their services from monies obtained from Local 226. Simply stated, the Government's theory of the case as to Northrup was: that a conspiracy existed to exert the superiority of Culinary Union Local 226 by firebombing various restaurants within its jurisdiction that did not recognize Local 226 as the bargaining agent for its employees; the conspiracy originated as an agreement to that effect entered into between Elmer "Al" Bramlet, former Secretary-Treasurer and leader of Local 226, and the Hanleys, owners and operators of an air conditioning business who entered into various independent contracts with Local 226; indicted Defendant Gramby Hanley physically executed the firebombings in question and, in that regard, obtained various incendiary devices and contacts for more of the same from Defendant Northrup.

Viewing the trial in the light most favorable to the Government, as I must do on a Rule 29(c) motion, the Government presented the following case against Northrup: Gramby Andrew Hanley testified that he obtained various items and devices from Northrup which Hanley thereafter utilized to plant, conceal and detonate or attempt to detonate explosive and incendiary devices at various locations in Las Vegas, Nevada, including the "Alpine Village," "David's Place," the "Starboard Tack," and the "Village Pub." The items and materials obtained from Northrup or with Northrup's assistance and advice included fuse, electric blasting caps, a brass sprayer suitable for spraying flammable substances, low voltage electric speaker wire, "pull-type" friction detonating devices and the components of incendiary detonators. Additionally, Northrup re-introduced Hanley to unindicted co-conspirator Claude Sells, Sells and Hanley having been old acquaintances from high school, so that Sells could assist Hanley in obtaining other explosive and incendiary devices and materials used to assemble, conceal and plant similar devices.

Thomas Radke testified that Northrup introduced him to Gramby Hanley and assisted Hanley in obtaining various kinds of smoke canisters from him. Several of these smoke canisters were recovered from the roof of the Alpine Village after having been planted there by Gramby Hanley.

Additionally, Gramby Hanley testified that he paid Northrup a total of between $80 and $100 for Northrup's assistance.

Two witnesses testified to statements made by Northrup to them regarding Northrup's participation in the aforementioned bombing and arson incidents. Mary Kanelos, Northrup's ex-wife, testified as to the first meeting between the two. Northrup met her in a bar in Las Vegas, subsequent to the Alpine Village and David's Place bombings. Northrup stated to her that he participated in the bombings of both places, and went into some detail about the David's Place bombing. Kanelos testified that Northrup was drunk at the time of the conversation, and that she felt he was boasting to her, out of a desire to impress her because, as Kanelos testified, "she appeared to be the kind of person who would be impressed by such facts."

John Snow testified to similar statements made to him by Northrup with respect to the Alpine Village and David's Place bombings. The statements were made under the following circumstances: Kanelos, who had formerly lived with Snow and had a child by that union, had left Snow to live with Northrup. However, Kanelos continued to keep in contact with Snow and through that contact, Snow learned of Northrup's prior statements to Kanelos. Snow evidently harbored deep emotional feelings for Kanelos, notwithstanding the prior breakup, and in particular harbored an evidently genuine concern for the child due to the implication of Northrup's statements. For that reason, Snow testified, he confronted Northrup and interrogated him about the truth of the prior statements made to Kanelos. While Snow too apparently harbored some doubts about the veracity of the statements at the time, Northrup admitted participating in the bombings, consistently with his prior statements to Kanelos. In particular, he reiterated this very crucial statement previously made to Kanelos: that he had participated in the bombings on behalf of the Culinary Union. At some subsequent point in time, Northrup financed Kanelos' custody struggle with Snow.

To be convicted as a member of an "enterprise conspiracy" under 18 U.S.C. § 1962(d) an individual, by his words or actions, must have objectively manifested an agreement to participate, directly or indirectly, in the affairs of an enterprise through the commission of two or more predicate crimes. United States v. Elliott, 571 F.2d 880, 903 (5th Cir. 1978), reh. denied, 575 F.2d 300. Additionally, the Government must prove that the activity of the subject enterprise had an effect on interstate commerce to sustain a conviction under § 1962(d); i. e., the Government must show a nexus of the enterprise to interstate or foreign commerce, however minimal. United States v. Rone, 598 F.2d 564, 573 (9th Cir. 1979). Finally, to prove a charge of violating § 1962(d), the Government must prove that the defendant in question had knowledge as to the enterprise's illicit activities. United States v. Diecidue, 603 F.2d 535, 556, 557 (5th Cir. 1979).¹

In the case at bar, there is no question but that a nexus existed at all relevant times between the subject enterprise, Culinary Union Local 226, and interstate commerce. Likewise, the testimony of Gramby Andrew Hanley, Claude Sells, and Thomas Radke established beyond a reasonable doubt that Northrup, by his words and actions, objectively manifested an agreement with Gramby Andrew Hanley to aid and abet him in more than one firebombing, and that these firebombings were connected to the affairs of the subject enterprise.

However, the difficult issue presented by this case is whether the Government has sufficiently proven the final prima facie element of 18 U.S.C § 1962(d) as to Northrup, namely that Northrup had knowledge of the nexus between the firebombings and the affairs of Culinary Union Local 226. The only evidence which the Government presented on this issue was the two admissions made by Northrup to Kanelos and to Snow; in marked contrast, Gramby Andrew Hanley himself testified that he purposely did not tell Northrup of the connection between his activities and the affairs of the Culinary Union. And Northrup was neither a member of the Union nor had contact with any Union officials. Northrup's argument by way of his Rule 29(c) motion is that he stands convicted on one of the prima facie elements of the crime, based upon his...