United States v. Elliott

In this case we deal with the question of whether and, if so, how a free society can protect itself when groups of people, through division of labor, specialization, diversification, complexity of organization, and the accumulation of capital, turn crime into an ongoing business. Congress fired a telling shot at organized crime when it passed the Racketeer Influenced and Corrupt Organizations Act of 1970, popularly known as RICO. 18 U.S.C. §§ 1961 et seq. (1970). Since the enactment of RICO, the federal courts, guided by constitutional and legislative dictates, have been responsible for perfecting the weapons in society's arsenal against criminal confederacies.

Today we review the convictions of six persons accused of conspiring to violate the RICO statute, two of whom were also accused and convicted of substantive RICO violations. The government admits that in this prosecution it has attempted to achieve a broader application of RICO than has heretofore been sanctioned. Predictably, the government and the defendants differ as to what this case is about. According to the defendants, what we are dealing with is a leg, a tail, a trunk, an ear separate entities unaffected by RICO proscriptions. The government, on the other hand, asserts that we have come eyeball to eyeball with a single creature of behemoth proportions, securely within RICO's grasp. After a careful, if laborious study of the facts and the law, we accept, with minor exceptions, the government's view. Because of the complicated nature of this case, both factually and doctrinally, a detailed explication of the facts and of the reasoning underlying our conclusions must be undertaken.

Simply stated, this is a case involving a group of persons informally associated with the purpose of profiting from criminal activity. The facts giving rise to this generalization, however, are considerably more complex. Evidence presented during the 12 day trial implicated the six defendants and 37 unindicted co-conspirators in more than 20 different criminal endeavors. Because the jury found the defendants guilty as charged, with two exceptions, we proceed on the assumption that all relevant credibility choices were made in favor of the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The facts can most clearly be set forth by focusing on specific episodes, arranged in roughly chronological order.

The history of the first Community Convalescent Nursing Home in Sparta, Georgia, began when defendant William Marion Foster encouraged a group of 34 blacks to invest in the project and ended several months later when the completed but unoccupied home was burned to the ground at Foster's behest. The second Community Convalescent Nursing Home was then built, at a profit, by Foster's construction company.

Foster, who had been in the construction and nursing home business, arranged for an SBA loan to the B. F. Hubert Development Corporation, comprised of 34 blacks. In expressing his willingness to help, Foster noted that SBA loans were available but that, tragically, many blacks did not know how to secure them. Foster set up a corporation, Community Convalescent Center, Inc., to lease the nursing home from the B. F. Hubert group. Construction on the home was completed in the summer of 1970, after which James E. McMullen, a coowner of the leasing corporation, worked to ready the home for its scheduled opening on December 4, 1970. On the evening of December 2, Foster ordered McMullen to fire the night watchman, Tommy Barnes.1 The next night McMullen and his wife worked at the home until 11:00 p. m., when they left, locking the doors behind them. Within hours, the front door of the home was unlocked, and gasoline and explosives were strewn through the halls and ignited. An investigation by the Georgia State Fire Marshal's Office reached the conclusion that the fire was intentionally set, but the perpetrators were never caught.

The crime might have remained unsolved had it not been for admissions made three years later by Foster and codefendant John Clayburn Hawkins, ironically nicknamed "J. C.". Foster and J. C. had been attempting to elicit the cooperation of their friend and occasional business associate James Gunnells in the concealment of a stolen shipment of meat and dairy products (an incident discussed later in this opinion). To show that he and J. C. were serious, Foster told Gunnells that he had paid J. C. and his brother, Recea Hawkins also a codefendant $4500 to burn the Community Convalescent Nursing Home. Gunnells, who was also in the nursing home business, replied that there was nothing in a nursing home to burn. J. C. explained that he had used three 55 gallon drums of gasoline and one drum of naphtha and had no problem in starting the fire.

From mid-1971 until at least the end of 1974, J. C. Hawkins and codefendants Robert Ervin Delph, Jr., and John Frank Taylor furnished counterfeit titles to and helped sell cars stolen by a major car theft ring operating in and near Atlanta, Georgia.

J. C. procured 200 counterfeit Georgia certificates of title in mid-1971 by furnishing negatives of titles to a Macon printer, Marvin Farr. After printing the 200 titles, Farr destroyed the negatives and the plates and buried the remains in his back yard. J. C. had also commissioned Farr to print books of state vehicle inspection stickers, for which he again furnished the negatives. Farr, however, was unable to complete the order because he could not devise a way to apply adhesive to the stickers. After a visit from J. C. during which J. C. demanded the inspection stickers "or else", T. 851, Farr left town. He was later arrested in Denton, Texas, and returned to Macon on state counterfeiting charges. In Macon he was contacted by Abe Crosby, an attorney and unindicted co-conspirator in this case. Crosby told Farr that he had been sent by people that Farr "was scared of" and that J. C. Hawkins wanted Farr to keep his mouth shut. After his release from jail, Farr was visited at his place of employment by J. C., who told him that he, Farr, was crazy "and that nobody talked about (J.C.) and got away with it". T. 856.

The car theft ring was comprised of Billy Royce Jackson, James A. Green, and Kenneth Sutton Boyd, all convicted car thieves and key witnesses for the prosecution in this case. Each testified that on several occasions he purchased counterfeit certificates of title from Delph and Taylor for $25 or $50 apiece. Green and Boyd testified that Delph and Taylor more than once identified their source of counterfeit titles as a man named "J. C." in Macon.2 Similarly, Larry Estes, a cousin of James Gunnells, purchased several counterfeit titles from J. C., both directly and through a middleman, Joe Breland. Green testified that in 1972 and 1973, he stole cars on request for Delph and Taylor. In the late summer or early fall of 1974, J. C. visited Green at the furniture store where Green was employed and asked him to steal two cars. Over the next year, Green stole several cars for J. C., at $400 per car. Recea Hawkins often accompanied his brother to pick up and pay for the cars.

Titles printed by Farr and distributed by J. C. were recovered in Alabama, California, Florida, Georgia, North Carolina, and Texas in connection with investigations of car thefts. In some cases, however, J. C. was able to recapture both car and title before either fell into the hands of the police. One such episode involved Benjamin F. Chester, Jr., who leased from J. C. a lounge adjacent to a liquor store owned and run by J. C. In 1971, J. C. sold Chester three cars "wholesale" and furnished the certificates of title. Chester, in turn, sold one of the cars to Raymond Booker. Instead of having Chester sign his title over to Booker, J. C. simply furnished Booker with a new "title". In July 1972, J. C. met with Chester and Booker at the lounge and demanded that the cars and titles be returned because they had "got hot". T. 1007. Booker recalled no threats from J. C., only the statement, "I've got to have my car back so y'all don't be hard headed". Chester, however, was reluctant to return his cars and remembered that J. C. finally stated, "I tell you what, if you don't give me them cars back, I will kill you myself or I will have you killed". Both men returned their cars and titles.

On March 30, 1972, a truckload of approximately 33,000 pounds of Hormel meat packed in cardboard boxes left the packing plant in Fremont, Nebraska, consigned to the Alterman Food Company in Atlanta, Georgia. The trailer carrying the shipment arrived in Smyrna, Georgia, late that night and was parked at the South Cobb Service Station to be picked up by another driver, Byron Moseley, for ultimate delivery on April 2. At 3:00 p. m. on April 1, Moseley observed the tractor-trailer parked at the service station. By 9:00 that evening, it had been stolen.3 The abandoned tractor was found beside a highway south of Atlanta the following day. About one month later, the empty trailer was recovered in Warner Robbins, Georgia.

On the night of April 1, 1972, J. C. Hawkins visited Rudolph Flanders at Flanders' grocery store, the Pick and Carry. J. C. asked if he could store boxes of Hormel Meat in the cooler of the Pick and Carry, and Flanders consented. Over the next few days, J. C. stored 40 to 50 boxes of meat which he sold with some assistance from Flanders. At some point that month, J. C. offered to sell a "semi-trailer truck" of meat to Larry Sykes for $7,000. Sykes contacted his brother, who was in the meat packing business, and was advised to pass up the deal because the meat "was just too low priced". T. 769. At about the same time, codefendant James Alford Elliott, Jr., sold a 50 pound piece of Hormel meat to Joe Fuchs, then a pharmacist in Macon. Fuchs returned the meat after he learned from a butcher friend that it was not "legitimate".4 A year later, shortly before Rudolph Flanders was tried in federal court for possession of the stolen Hormel meat, J. C. told James Gunnells that "it was his (J. C.'s) load of meat", that he had purchased it for approximately $10,000, and that Recea Hawkins was also involved in the transaction.

D. Efforts to Influence the Outcome of the Stolen Meat Trial:

Rudolph Flanders' trial for possession of the stolen interstate shipment of meat took place during the first week of May, 1973. Days before the trial, Flanders met with J. C., Gunnells, and others, in the coffee shop of the old Grady Hotel in Macon. At the meeting, the jury list for Flanders' trial was passed around to "see who we knew on it and who we could talk to". T. 237. J. C. recognized one name on the list, James Elliott, as that of a young man who lived behind him. He indicated that he was certain Elliott would cooperate if he were on the jury. Elliott was selected as a juror at Flanders' trial and, alone among the other 11 jurors, voted for acquittal, causing a mistrial.5

E. September, 1973: A Truck Theft and Its Aftermath:

On September 24, 1973, a Caterpillar front-end loader and a Ford dump truck were stolen from a construction site near Atlanta. That night, J. C. Hawkins appeared at the Eubanks Tire and Battery Company near Macon to purchase a new tire for the stolen dump truck. He gave his name as "Roy Evans", and remained on the opposite side of the highway in a brown Buick while Tommy Ellison, an employee of Eubanks, changed the tire.

In the pre-dawn hours of the following day, September 25, Terry Singleton, a Bibb County Sheriff's Deputy, received a call from Jimmy Reeves. Reeves stated that J. C. had just telephoned him and asked him to go to the Waffle House at the intersection of I-475 and U. S. 80. Singleton and his partner, Jim Reid, conducted a surveillance of the Waffle House, where they observed J. C. with a light blue Continental Mark IV and Reeves, in his pick-up truck. Eventually, Reeves' truck left the Waffle House, proceeding west on U. S. 80. Singleton saw the truck slow down and flash its left turn signal near an underpass, but it never executed the turn. Within an hour, Singleton called Reeves to learn what had happened. Reeves reported that he drove J. C. along U. S. 80 so that J. C. could show him where the dump truck and front-end loader were hidden, but that just as he was about to turn left to reach the spot, J. C. observed a marked patrol car and was "spooked". Singleton drove to the area described by Reeves and found the stolen equipment. On January 21, 1974, J. C. was indicted in state court for the theft of the dump truck and front-end loader.

1. The Murder of Jimmy Reeves: In the spring of 1974, J. C. and Gunnells had discussed the purchase of antique watches and guns from Jimmy Reeves. One night in April or May of that year, J. C. received a call at his home in the presence of Gunnells. After the call, J. C. told Gunnells that they should be glad they had not done business with Reeves, whom J. C. then described as a "finking son of a bitch". Later that night, during a conversation about the state theft charges pending against him, J. C. commented to Gunnells that "they wouldn't have a witness".

Early on the morning of May 27, 1974, Reeves received a telephone call. He left his home in his pick-up truck immediately after the call, explaining to his wife and children that he did not have time to eat breakfast. At 8:40 that morning, in a church yard not far from his home, Reeves' body was found lying on the floor board of his truck. He had been killed by three 16-gauge shotgun blasts using Number One buckshot. Extensive powder burns associated with two of Reeves' wounds indicated that they had been inflicted at a "very close" range. T. 556-57.

Two or three days after the Reeves murder, Gunnells was present at J. C.'s house and overheard a conversation between J. C. and his brother, Recea. J. C. asked, "How did it go?", to which Recea responded, "First shot out of the barrel and he didn't even know what happened didn't even see it coming". Recea explained that he was "real sure" because he was "close enough for powder burns". T. 321. Other evidence circumstantially linking Recea to the Reeves murder came from an eyewitness who observed a dark blue car parked on a dirt road near the church yard shortly before 8:00 on the morning of the murder. In May, 1974, Recea owned a 1968 or 1969 dark blue Pontiac.

2. The Intimidation of Tommy Ellison: In September 1974, one year after he sold a tire to "Roy Evans", Ellison was approached at his place of work in Griffin, Georgia, by two black men who offered to drive him to Atlanta to "have some fun". Ellison explained that he could only go on a rainy day, when he would not be required to work. About a week later, on a rainy day, the men returned and drove Ellison to Atlanta in a Lincoln Continental with two pistols lying on the front seat. During the ride, the men offered Ellison $150 to make a statement that he did not know "a friend of theirs". Ellison agreed. In Atlanta, he was taken to the office of Charles E. Clark, an attorney, where he signed a sworn statement reading, in part, as follows:

Upon being introduced to a man called J. C. HAWKINS, I noticed immediately that this was not the man to whom I gave tire service on the night of September 24, 1973. The man that I observed at the Eubanks Tire Center was several inches taller and weighed more than this man. I have never seen the man introduced to me as J. C. Hawkins before in my life.

According to Ellison, this statement was false. After signing it, he was introduced to J. C., who had been waiting in another office. J. C. said, "I appreciate what you did and my friends will take care of you, what they promised you", and gave Ellison a drink of liquor. The two black men then drove Ellison back to Griffin, but paid him only $25.

On October 19, 1973, a tractor-trailer load of swinging beef, pork, veal, and lamb, and boxes of butter and cheese was shipped from Nashville, Tennessee, aboard a Thompkins Motor Lines refrigerated trailer. The shipment was driven to a terminal in Decatur, Georgia, where it was parked temporarily. At some point over the next two days, the tractor and trailer were stolen by Milton Burnett and Bill Rainey. On October 24, the abandoned tractor was discovered near Forest Park, Georgia; the loaded trailer had been sold to J. C. in Macon.

The first problem confronting J. C. was where to store the large quantity of meat and dairy products that he had illicitly acquired. The stolen goods probably would have been kept at three nursing homes owned by Foster had it not been for a fortuitous series of events the month before. In September, 1973, Foster learned that the Georgia Bank was about to foreclose on his nursing homes in Sparta, Lumber City, and La Grange. To avoid losing the homes, Foster went into business with James Gunnells, who loaned him approximately $60,000. Foster, in turn, leased the homes to Gunnells, effective October 1, 1973. Consequently, before Foster could use the nursing homes for his own purposes, he had to secure Gunnells' permission.

On October 24, 1973, Foster and J. C. spoke to Gunnells in Foster's office. J. C. stated that he had "a semi-truckload of swinging beef" parked at a truck stop on Gray Highway and that he needed a place to store it. A "deal" that J. C. and Foster had on the meat had fallen through, and now they wanted Gunnells to release his leases on the nursing homes so that Foster could have access to their refrigeration units. Gunnells refused. J. C. told Gunnells that he was "a goddamn fool" and that, if he did not cooperate, he would lose $8,500 that he had loaned to Foster over the past two days.6 Foster called Gunnells "silly" and explained that "he could trust J. C. completely". At this point Foster related how he had paid J. C. and Recea Hawkins $4,500 to burn the Sparta nursing home in 1970. Finally, pressed by J. C. to come up with a place to put the meat, Gunnells suggested that they move the trailer to the farm of his friend, Howard Wooden.

That night, J. C. drove the tractor-trailer to Wooden's farm off Interstate Highway 75 near Perry, Georgia, south of Macon. There, J. C., Wooden, Gunnells, and Larry Estes tried unsuccessfully to back the trailer into Wooden's barn. At about 2:30 a. m. the next day, October 25, the four men drove the van to an open field adjoining I-75 farther south, and left it there for the night. After daybreak, J. C. and Estes drove the van back to Wooden's farm. With Wooden and Gunnells, they unloaded the stolen meat and dairy products into an old ice cream truck and a U-Haul van rented by J. C. that day in Macon.

On October 26, Estes drove the U-Haul van to a grocery store in Jeffersonville, Georgia, which was owned by Foster and had been closed for about one year. There he met Foster and Larry Hudson, a mechanic employed as Gunnells' "general flunky". After Hudson, at Foster's request, turned on the store's old freezers, the three men began unloading the U-Haul van. At that point, a state patrol or local police car pulled up outside the store. Foster spoke to the officer, who soon left. Foster then told Estes and Hudson that he did not want the meat and cheese at his store, so they reloaded the van and drove to J. C.'s house in Macon, where they were able to fit some of the goods into an old chest-type freezer on J. C.'s back porch. The next day Foster told Gunnells that a law enforcement officer had caught him with the meat but that he, Foster, had "out-talked him". T. 290. The remainder of the stolen meat, butter, and cheese was sold to the owner of a supermarket in Charlotte, North Carolina, by Paul Moose, Jr., at the request of Leon Averett.7

G. Stolen Forklift and Ditchwitch: Honor Among Thieves:

J. C. believed that he had been shortchanged by Rainey and Burnett in that he paid for but did not receive a full trailer load of meat and dairy products. He demanded and received a partial refund. Instead of paying in cash, however, Rainey and Burnett made good on their obligation by delivering to J. C. a stolen forklift and ditchwitch. At about the same time in November, 1973, Foster told J. C. that he needed a forklift at one of his construction projects. In the presence of James Gunnells, J. C. told Foster that he could save money by buying the "hot" equipment, from him for $3,500. Foster bought the two pieces of equipment, knowing they were stolen. He got less than a bargain, however. The forklift developed mechanical problems, and remained at the construction site for only two months before Foster had it moved to his backyard in Jeffersonville, where his children used it as a springboard for their trampoline. The forklift remained at Foster's home for nine months until it was confiscated by the Georgia Bureau of Investigation.8

On November 7, 1973, a trailer load of "Career Club" shirts consigned to an interstate shipment and valued in excess of $56,000 was stolen from the Roadway Express Terminal in Macon. The trailer, on which the name "Roadway" was painted in tall, bold letters along each side, wound up in an Atlanta warehouse built and owned by Foster.

The lessons of the stolen meat experience the month before apparently were not lost on Foster. Two years earlier he had entered into a business venture with Kenneth Lamar Keyes, a glass installer, to construct a warehouse-type building for Keyes to rent for use as a glass processing plant. The building, located in Atlanta, was completed during the summer of 1973 and had doors large enough for semi-trucks and trailers to pass through. As of November, 1973, no equipment had been installed. That month, Foster asked Keyes if he could rent the building to someone for two or three months, ostensibly to help defray interest payments on the money borrowed to finance the building. Keyes consented. A few days after he was contacted by Foster, Keyes, along with his stepson, Kenneth Horace Johnson, witnessed J. C. and two other men drive up to the warehouse, pry the locks off the surrounding gate with a crowbar, and replace them with new locks. Several days later Keyes and Johnson looked inside the warehouse and found the 40 foot Roadway trailer. Within a week the trailer was gone, a pile of U-Haul blankets left in its stead.

Gunnells, by his account, was unwittingly drawn into the stolen shirt episode by Foster. First, as a Christmas present, Foster gave Gunnells approximately 25 of the stolen shirts.9 When Gunnells later learned that the shirts were stolen, he returned all but one to J. C. and Recea Hawkins. The one remaining shirt, which he turned over to the Bibb County Police, was introduced into evidence in the instant case and was identified as a part of the stolen shipment. Second, Foster asked Gunnells to take some polaroid photographs of the outside of his Atlanta warehouse. Gunnells travelled to Atlanta with J. C. and Recea for this purpose. At the warehouse, J. C. unlocked the gate and the office door, showed Gunnells the trailer and its contents, and offered to sell him shirts for one dollar apiece. As they were leaving the warehouse, Gunnells noticed a police car parked across the street but was told by J. C. not to worry. On his return to Macon, Gunnells approached Foster to register his concern over what had happened in Atlanta. Foster explained that "there wasn't nothing to worry about, that he had a lease drawed up showing that he had leased it to somebody if anything ever happened". T. 307.

Like the meat and dairy products the month before, the stolen shirts were eventually disposed of through Leon Averett and Paul Moose, Jr. in Charlotte, North Carolina. In connection with the sale of the shirts, Averett told Moose that "they" had a warehouse in Atlanta big enough to handle several tractor-trailers. Some of the shirts sold by Averett and Moose were recovered and identified as part of the stolen shipment.

With the exception of Foster, all defendants were implicated in a number of illegal drug transactions throughout the period covered by the indictment. We list those transactions chronologically.

1. 1971-72: Elliott Barters in Black Beauties: Early in 1971, Joe Fuchs, then a pharmacist in Macon, wished to have a screened enclosure built around his porch. According to Fuchs, James Elliott suggested that Joe Breland could do the work at a low price. He and Breland went to Fuchs' house, where Elliott negotiated a deal, requesting payment in amphetamine pills, popularly known as "black beauties". Fuchs agreed, and the work was completed over the period of a year, during which time Fuchs gave the pills to Elliott and Breland in installments of 400.10

2. 1972-73: Amphetamine Sales: In early 1972, shortly after their counterfeit title transactions commenced, Robert Delph began selling amphetamines to car thief Jim Green. Green recalled approximately six occasions on which he purchased 1,000 pills from Delph for $150. Kenneth Boyd, also a member of the car theft ring, accompanied Green to Delph's house during the first transaction, and later became a steady customer. For a period of eight months beginning in the summer of 1972, Boyd bought somewhere between 1,000 and 10,000 pills from Delph at two week intervals. Boyd also purchased amphetamines from defendant Taylor in similar quantities at one month intervals for about one year, beginning in the summer of 1972. According to Boyd, both Delph and Taylor on several occasions identified their source of pills as J. C. Hawkins. Knowing that the pills supplied to him were not pharmaceutical, Boyd was concerned about their source because uniformity of quality was an important factor in their resale value. During one conversation, Boyd pressed Delph for details about his source of pills. Delph, who had been drinking, eventually stated that "he had a truck that he was running for J. C. and that they was partners in the deal or some kind of operation or setup". T. 1275-76.

3. Winter 1973: The Jamaican Conspiracy: In November 1972, J. C. approached his friend Harry Randall in Macon about purchasing marihuana and amphetamines in Jamaica. Randall at the time owned a car rental business in Kingston, Jamaica. He contacted his Kingston associate, Dillon Barnes. Barnes flew to Macon where he, J. C. and Randall, after protracted negotiations, reached an agreement as to their general plan: Barnes would return to Kingston to set up the purchase of 300 pounds of marihuana and 200 pounds of amphetamine powder, Randall would then fly down to make the purchase and arrange for transportation to the United States; J. C. would pay for and distribute the drugs. By coincidence, during this period, J. C. and James Gunnells were interested in purchasing a piece of property in Macon owned by the Tweedles, a couple who lived in Jamaica. When Randall finally flew to Jamaica in January, 1973, to purchase the drugs, J. C. asked him to contact the Tweedles to negotiate the sale of their Macon property. J. C. arranged for Randall's trip to be paid for by Gunnells, who knew nothing of the drug conspiracy. Randall travelled to Jamaica, set up the deal and wired home for $1,500, which was sent by Western Union but never received by Randall. The drug deal fell through when Randall learned that the pilot he had recruited to fly the illicit goods back to Macon was an agent for the Drug Enforcement Administration.

4. Spring 1973: The Canadian Conspiracy: During the spring of 1973, Delph and Taylor met with James Green to discuss a plan to bring large quantities of amphetamine powder and MDA into the United States from Canada. Delph and Taylor stated that they planned to travel to Canada where they knew a chemist who could supply the drugs, and asked Green to assist them in selling whatever they were able to bring back. Soon thereafter, Delph and Taylor drove to Canada and returned with powdered amphetamine and MDA which they sold to Green for $125 per ounce and which Green resold to a single individual for $150 per ounce.

5. Fall 1973: The Mexican Conspiracy: In late October or early November, 1973, William Maxwell Martin, who was peripherally involved in the car theft ring, was introduced to Taylor by Billy Royce Jackson, a member of the ring. After Jackson arranged to purchase a counterfeit certificate of title from Taylor, Martin asked Taylor if he would be interested in buying several tons of marihuana. Taylor stated that marihuana required too much space in transportation and asked if Martin could obtain heroin or cocaine, noting that others with whom he was involved "had just got through purchasing an airplane for $102,000 to bring heroin to this country". T. 1196. Martin and Jackson, already planning to go to Mexico in search of marihuana, agreed to look for heroin and cocaine for Taylor. The two never reached Mexico, however; they were arrested en route in Laredo, Texas, on Dyer Act charges of transporting a stolen vehicle across state lines. After his arrest, Martin agreed to cooperate with the Drug Enforcement Agency. From his hotel room in Laredo and in the presence of DEA agents, Martin called Taylor and stated that he was out of jail and in Mexico and that he could put a deal together as discussed. According to Martin, Taylor "said that he was hoping that we could, that he wanted to do some checking, and for me to get back with him later". T. 1195. Martin, however, was unable to contact Taylor again. The single telephone call from Martin's hotel room went unrecorded due to a malfunction in the DEA's recording equipment.

6. 1973: Miscellaneous Drug Transactions: In addition to the major drug deals, successful and unsuccessful, of 1973, the evidence disclosed several minor, isolated drug transactions that year. In the spring of 1973, Joe Breland purchased a bottle of "speed" from J. C. at one of Foster's construction sites. At about the same time, J. C. invited Joe Fuchs to his house to rummage through his stash of illegally obtained prescription drugs. Fuchs noted that most of the drugs were "normal prescription type medication" with no street value and thus of no interest to him. J. C. explained that "Scooter" Herring had recently been through those drugs and had picked out what he wanted, so that only a few controlled drugs were left.11 Fuchs found four to six bottles of Ritalin, a Schedule II controlled substance, which he bought from J. C. for $250. Additionally, Billy Royce Jackson recalled that sometime in 1973 he was given about 25 amphetamine pills by Delph.

7. 1974: MDA: Early in 1974, J. C. approached Larry Estes and offered to sell him MDA, explaining that he had two pounds on hand and needed some money. Estes promised to check at a local nightclub to see if he could find a buyer. Within a week, Estes called J. C. and stated that he had found someone interested in purchasing MDA. At J. C.'s suggestion, Estes went to Recea's motorcycle shop in Macon and told Recea that he could sell one ounce of MDA for $350. Recea told Estes to walk down the road for a while and that when he returned, the MDA would be under the front seat of a particular car parked outside the shop. After picking up the MDA in this manner, Estes returned to his apartment, where his potential buyer sampled the product and paid $350 for the tiny plastic bag of grayish-brown powder. Estes then delivered the money to Recea. Over the next two weeks, Estes made two more sales for Recea using the same procedure. On April 27, 1974, Macon police raided the apartment of Recea's estranged wife, Patricia Thomas, and seized approximately 364 grams of 245 trimethoxyamphetamine, a controlled substance similar to MDA. Although keys to the apartment were possessed by Recea Hawkins, Ricky Strozier and Patricia Thomas, the latter two denied any knowledge of the seized drugs.12

8. 1976: Marihuana: In May, 1976, J. C. met with Bob Day, a pilot and an old friend. With Day's consent, the meeting was surreptitiously recorded by agents of the Georgia Bureau of Investigation, and relevant portions of the tape were admitted into evidence at the trial. At one point in this conversation, J. C. admitted to Day that three to five weeks earlier, "we got 200 pounds" of "goddamn, jam-up good" marihuana. Soon thereafter, J. C.'s narrative statement continued, J. C. and his unnamed compatriots purchased but returned another 200 pounds which were not as good. They then purchased 300 pounds of marihuana, which they sold within two weeks although it too was of low quality. T. 2210.

9. 1976: The Hawkins-Day Conspiracy: In April, 1976, J. C. met with Day and Kevin Sapp at Day's home in Dawson, Georgia, to discuss two criminal schemes, one of which involved a marihuana deal J. C. claimed to be working on in "New Mexico". At the meeting, J. C. offered Day $10 per pound to fly a minimum of 500 pounds of marihuana from "New Mexico" to Georgia. The next month, Day, wired for sound, visited J. C. in Macon to discuss their plans. J. C. raised the possibility of importing a large quantity of marihuana from Colombia, South America, by ship because "the quality right now in Mexico is lousy". If Day knew of a ship that was available, J. C. stated, he had someone willing to invest over a million dollars. As for airplanes, "I done blowed three or four years' salary in the last three or four years fucking with them airplanes. Almost everyone that's come from down there has got caught, has got jumped". When Day described a shrimp boat for sale, J. C. replied that such a boat "is not big enough to haul what I'm talking about, 50,000 pounds".

Months after he knew that a federal grand jury was hot on his trail, J. C. continued to devise criminal money-making schemes, as his tape recorded conversation with Bob Day reveals. In addition to marihuana deals, J. C. planned to burglarize the Triangle Chemical Company in Macon and steal approximately 2,000 five gallon cans of "Bravo", a fungicide used to dust crops during the summer months. In April, 1976, J. C. solicited the help of Day and Kevin Sapp in this endeavor, the details of which were discussed the following month in the taped conversation between J. C. and Day. J. C. stated that he already had the trucks necessary to carry the 60 pound chemical drums a tractor-trailer and two "six-wheelers". He then outlined a plan to assure that the eventual buyer would be unaware of J. C.'s and Kevin Sapp's involvement and that Sapp, apparently an employee of Triangle, would be unaware of the identity of the buyer.

J. C.'s modus operandi, as reflected in this arrangement, was based on the mistaken notion that a person could not be convicted on the basis of only one co-conspirator's testimony.13 J. C. thus assumed and often advised others that he would be sheltered from liability if he could deal with only one other person at each phase of a particular transaction. His explanation to Day is illustrative:

HAWKINS: They won't never be more than two people together on your end of it. So you and the guy you deal, you and me.

DAY: I'd just rather deal with you . . .

HAWKINS: You go deal with your man by yourself and you tell him what you want him to know.

DAY: That's right. You just don't tell Calvin (sic) that I was nowhere around or nothing.

HAWKINS: Naw, but he'll know in his own mind that you

HAWKINS: That don't mean nothing. Even in court if he said you was, that's nothing. Your word's as good as his. T. 2234.

As for his own liability, J. C. told Day that the buyer "can pay you direct and you can pay me, and you'll never see anybody else. That's my word against yours . . . That don't even bother me . . . One on one ain't worth a shit".14 T. 2226.

The eight count indictment in this case was returned on July 29, 1976, superseding an almost identical indictment filed on June 10, 1976. The indictment charged the following:

COUNT ONE: Conspiracy to Violate RICO: All six defendants, James Alford Elliott, Jr., Robert Ervin Delph, Jr., William Marion Foster, Recea Howell Hawkins, John Clayburn Hawkins, Jr. a/k/a J. C., and John Frank Taylor, were named in Count One as having conspired, from December 3, 1970, until the filing of the indictment, with each other, with 37 unindicted co-conspirators, and with "others to the grand jury known and unknown" to violate a substantive provision of the RICO statute, 18 U.S.C. § 1962(c), in violation of 18 U.S.C. § 1962(d).15 The essence of the conspiracy charge was that the defendants agreed to participate, directly and indirectly, in the conduct of the affairs of an "enterprise" whose purposes were to commit thefts, "fence" stolen property, illegally traffic in narcotics, obstruct justice, and engage in "other criminal activities". The indictment listed 25 overt acts, beginning with the burning of the Community Convalescent Nursing Home in 1970 and culminating with J. C. Hawkins' marihuana transactions in the spring of 1976.

COUNT TWO: The Substantive RICO Charge: J. C. and Recea Hawkins only were charged with a substantive violation of the RICO statute, 18 U.S.C. § 1962(c), in that they conducted and participated, directly and indirectly, in the conduct of the affairs of an enterprise through a pattern of racketeering activity. The crimes alleged to satisfy the statutory requirements for "a pattern of racketeering activity" included those charged in Counts Three through Six and Count Eight, as well as the possession and sale of Ritalin and the distribution of MDA on three occasions, all in violation of 21 U.S.C. § 841, the murder of Jimmy Reeves, in violation of Ga. Code Ann. § 26-1101, and the burning of the Community Convalescent Nursing Home, in violation of Ga. Code Ann. § 26-1401.

COUNT THREE: J. C. Hawkins was charged with violating 18 U.S.C. §§ 659 and 2 in that he possessed and concealed with the intent to convert to his own use a stolen interstate shipment of Hormel meat valued in excess of $100.

COUNT FOUR: J. C. Hawkins and James Elliott were charged with violating 18 U.S.C. §§ 1503 and 2 in that they corruptly endeavored to obstruct justice by "hanging" the jury in the trial of Rudolph Flanders for the possession and concealment of the stolen Hormel meat.

COUNT FIVE: J. C. Hawkins and William Marion Foster were charged with violating 18 U.S.C. §§ 659 and 2 in that they possessed and concealed with the intent to convert to their own use a stolen interstate shipment of Swift Premium meat and dairy products valued in excess of $100.

COUNT SIX: J. C. Hawkins, Recea Hawkins and Foster were charged with violating 18 U.S.C. §§ 659 and 2 in that they possessed and concealed with the intent to convert to their own use a stolen interstate shipment of "Career Club" shirts valued in excess of $100.

COUNT SEVEN: James Elliott was charged with violating 18 U.S.C. § 1503 in that he corruptly endeavored to obstruct justice by encouraging Joe Fuchs to lie to a federal grand jury "investigating theft from interstate shipment of Swift Premium boxed beef". The indictment's reference to "Swift" was erroneous; the boxed beef discussed by Elliott and Fuchs had been produced by Hormel.

COUNT EIGHT: J. C. Hawkins was charged with violating 18 U.S.C. § 2315 in that he knowingly received and disposed of a counterfeit security, a Georgia State Certificate of Title, moving in interstate commerce.

At the close of the government's case, the trial judge directed a verdict of acquittal on Count Four in favor of James Elliott. The jury acquitted J. C. Hawkins on Count Four and Elliott on Count Seven, thus eliminating all substantive obstruction of justice charges from the case. All remaining defendants were found guilty as charged by the jury under Counts One, T