United States v. Glen Sutherland, Edward Maynard and Grace Walker

In this case three defendants appeal their convictions for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO) in violation of 18 U.S.C. § 1962(d) (1976). The defendants raise a large number of issues, one of which involves an important RICO question: whether and when conspiracies that involve the same enterprise but are otherwise unrelated may be tried together under a single RICO conspiracy count. We consider the defendants’ points on appeal seriatim and affirm their convictions.

I. THE FACTS

Glen Sutherland, Grace Walker and Edward Maynard were indicted in January 1980 for conspiracy to violate 18 U.S.C. § 1962(c) 1 in violation of 18 U.S.C. § 1962(d). 2 The indictment charged, in *1186 brief, that the three defendants “did knowingly, wilfully, and unlawfully combine, conspire, confederate, and agree together and with each other,” from November 1975 until the date of the indictment, to violate section 1962(c). The conspiracy alleged by the government consisted of an agreement to associate with and to participate in the conduct of an enterprise that affects interstate commerce (the Municipal Court of the City of El Paso) through a pattern of racketeering activity (bribery of a state official in violation of state law). 3

The alleged conspiracy centers around Sutherland, who at the time of these events was a judge of the Municipal Court. According to the government, the defendants agreed that Maynard and Walker would each collect traffic tickets from his or her friends and associates, along with the amount of the statutory fine plus a small premium ($10); that Maynard and Walker would deliver the tickets to Sutherland, who would have the cases transferred to his docket and would then favorably dispose of them; and that the money collected would in each case be split between Sutherland and whichever other defendant collected and delivered the ticket.

Although the indictment frames the conspiracy as a single agreement among all three defendants, the government did not attempt at trial to prove any agreement between Walker and Maynard. As counsel for the government explained in response to an objection by the defendants to the introduction of coconspirator hearsay:

MR. BOCK: . . . It’s the government’s position that the conspiracy in this case, the hub of it, is the judge [Sutherland], and his activities with these other cocon-spirators. And there is absolutely no requirement that they know each other or have knowledge of each other’s activities.

THE COURT: Your theory is that it is a wheel-type conspiracy?

MR. BOCK: Yes, sir, exactly.

THE COURT: That there was no one conspiracy but a series of conspiracies? MR. BOCK: Yes, sir.

Trial Transcript at 656-57.

This view of the government’s case is consistent with the evidence presented at trial, which we discuss in inore detail in Part II of this opinion. Briefly, we find the evidence sufficient to support each of two separate conspiracies, one between Walker and Sutherland and the other between Maynard and Sutherland. In each case the evidence is more than sufficient to establish an agreement to participate in the conduct of the Municipal Court through a pattern of racketeering activity. However, the government has pointed to no evidence in the record (and we have found none) that suggests that either Walker or Maynard knew or should have known of the other’s similar agreement with Sutherland. The government’s evidence as to these two defendants is entirely unrelated and, in fact, places the two conspiracies at different periods of time: the specific instances of bribery alleged between Walker and Sutherland all took place between 1975 and 1977, while those between Maynard and Sutherland all took place in 1979.

II. THE SUFFICIENCY OF THE EVIDENCE

All three defendants challenge the sufficiency of the evidence to support their convictions under 18 U.S.C. § 1962(d). First, each argues that the government failed to establish a “pattern of racketeering activity” since the evidence does not specifically demonstrate “at least two acts of racketeering activity,” as required by 18 U.S.C. § 1961(5), supra at note l. 4 Second, *1187 Walker argues that the evidence does not sufficiently establish any agreement between herself and Sutherland. In considering these arguments we must read the evidence in the light most favorable to the government, and must reverse the convictions if we find that any reasonable jury thus reading the evidence must necessarily have entertained a reasonable doubt as to the defendants’ guilt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Ocanas, 628 F.2d 353, 360 (5th Cir. 1980), cert. denied, — U.S. -, 101 S.Ct. 2316, 68 L.Ed.2d 840 (1981).

A. The Requisite “Two Acts of Racketeering Activity”

The government proved that a number of specific traffic tickets were (1) given by traffic violators to either Walker or Maynard, and (2) favorably disposed of by Sutherland in his capacity as municipal judge. Through the testimony of Sally Kalastro (a co-worker with Walker at the time of the events in question), the government identified twenty-five individual tickets that had been accepted by Walker. Through the testimony of several persons who submitted tickets to Maynard (including several bogus tickets prepared for the purpose of the investigation), the government identified fifteen individual tickets that had been accepted by Maynard. In the case of each ticket, the government introduced evidence (primarily from Municipal Court records) to establish its favorable disposition (typically a finding of not guilty) by Sutherland.

The gist of the defendants’ argument is that the governments’ evidence fails to prove that any one of these specific tickets was the subject of bribery. Insofar as the government’s direct evidence is concerned, this statement is correct. The government does not point to any evidence that pertains to any specific ticket and demonstrates either (1) that the ticket was delivered by Walker or Maynard to Sutherland, (2) that money was delivered by Walker or Maynard to Sutherland, or (3) that Sutherland favorably disposed of the ticket in exchange for such money. Moreover, the defendants suggest a reasonable hypothesis of innocence that is consistent with the government’s direct evidence as to any one ticket: a ticket that was merely given to Walker or Maynard and later favorably disposed of by Sutherland might have been successfully defended by an attorney retained by Walker or Maynard.

The fault in the defendants’ argument is that it ignores the importance of the overwhelming circumstantial evidence introduced by the government. The government’s case begins with evidence that pertains both to the Walker-Sutherland and to the Maynard-Sutherland conspiracies. This evidence establishes, in brief, that the individual tickets at issue were not processed through normal Municipal Court procedures. Only five of the forty tickets were processed through the Traffic Violations Bureau, which ordinarily assigns individual cases to the various judges, and only four of the tickets had complaints drawn up on them, although a complaint is ordinarily *1188 prepared in each case that is heard by a judge. Moreover, the government introduced the testimony of two Municipal Court clerks to the effect that Sutherland regularly appeared in court with the violators' copies of traffic citations and directed the clerks irregularly to process those tickets. These clerks also testified that they were instructed by Sutherland not to discuss these irregular practices in public; that Sutherland paid the clerks for the extra work required by such practices; and that Sutherland ceased the irregular procedures when he discovered he was under investigation.

The government also introduced substantial circumstantial evidence with regard to each separate conspiracy. The government’s case as to the Walker-Sutherland conspiracy rested chiefly on the testimony of Sally Kalastro. She testified that beginning in 1975 Sutherland would meet Walker in her office once or twice each week. On one such occasion in late 1975, Kalastro interrupted the meeting and observed Sutherland taking a stack of traffic citations (the violators’ copies), along with a stack of money, from Walker. Kalastro testified that after Sutherland left the office, Walker chastised her for the interruption but confessed to the ticket-fixing scheme and explained to Kalastro how it operated.

The government’s case as to the Maynard-Sutherland conspiracy rested chiefly on testimony concerning a series of meetings in which persons cooperating with the F.B.I. in mid-1979 sought help from Maynard with their traffic tickets (some of which were written for the purpose of the investigation). In each instance, Maynard appeared to call someone to ask the cost of taking care of a ticket; although he did not refer to Sutherland by name during the phone conversations, he referred to his contact as “the Honorable” and indicated that the contact was the only judge handling night court, which was in fact Sutherland’s assignment. Moreover, Maynard referred to his activities as “fixing” or “taking care of” the citations, and insisted on payment in cash. The evidence suggests that on at least one occasion, Maynard dialed his own number and merely pretended to speak with another person as to the price necessary to take care of the ticket; however, the government’s evidence shows that seventy-eight phone calls were in fact made between Sutherland’s and Maynard’s phones during the three month period of the investigation.

The appropriate standard for our examination of the sufficiency of the evidence is no different where — as here — the evidence is largely circumstantial rather than direct. E. g., United States v. Palacios, 556 F.2d 1359, 1364 (5th Cir. 1977); United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). It is clear, therefore, that a criminal conspiracy may adequately be established purely on circumstantial evidence. E. g., Glasser v. United States, supra, 315 U.S. at 80, 62 S.Ct. at 469; United States v. Harbin, 601 F.2d 773, 781 (5th Cir.), cert. denied, 444 U.S. 954, 100 S.Ct. 433, 62 L.Ed.2d 327 (1979); United States v. Elliott, 571 F.2d 880, 903 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). For example, participa tion in a conspiracy to distribute illegal drugs can be established solely on the basis of the quantity of drugs in the possession of the defendants; at some point the circumstance of enormous quantity excludes all reasonable hypotheses of innocence despite the absence of direct evidence of an intent to distribute. E. g., United States v. Perez, 648 F.2d 219, 221 (5th Cir. 1981) (“The defendants could not, even if they were chain smokers, personally consume this quantity of marijuana in their lifetime.”)

The government established through direct evidence that a number of specific traffic tickets were given to Walker and Maynard and were later favorably disposed of by Sutherland. The government did not demonstrate through direct evidence that any one of these tickets was actually given to Sutherland in the conduct of a bribe. However, such facts may adequately be established by circumstantial evidence. In this case, the exceptionally irregular treatment of the tickets, Walker’s earlier meetings with Sutherland and admission of a ticket-fixing scheme, and Maynard’s conversations with several “customers,” consti *1189 tutes convincing evidence of bribery as to the individual tickets at issue. We conclude that the evidence is more than sufficient to support the charge.

B. The Agreement

Walker argues that the government’s evidence was insufficient to establish an agreement with Sutherland to violate 18 U.S.C. § 1962(c). Her argument seems similar to that advanced by all the defendants with respect to the requisite two acts of racketeering. In particular, Walker argues that the government advanced no direct evidence of any agreement between Sutherland and herself.

The government was indeed obligated to establish an actual agreement to commit a substantive RICO offense. “To be convicted as a member of an enterprise conspiracy, 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.” Elliott, supra, at 903 (emphasis deleted). In this case, however, we find that the government did introduce direct evidence of such an agreement: Kalastro’s testimony as to Walker’s admission of a ticket-fixing scheme between herself and Sutherland. Moreover, that agreement, like the predicate crimes discussed above, may be established by circumstantial evidence. In this case an agreement is sufficiently established by the large number (twenty-five) of individual racketeering acts which the jury was entitled to find were committed by Walker and Sutherland. “Where, as here, the evidence establishes that each defendant, over a period of years, committed several acts of racketeering activity in furtherance of the enterprise’s affairs, the inference of an agreement to do so is unmistakable.” Elliott, supra, at 903.

III. THE MULTIPLE CONSPIRACY DOCTRINE AND RICO

A. The Trial of Multiple Conspiracies Under a Single RICO “Enterprise Conspiracy” Count

It is now well settled that a material variance between the indictment and the government’s evidence is created by the government’s proof of multiple conspiracies under an indictment alleging a single conspiracy. 5 This “multiple conspiracy doctrine” is commonly illustrated by the Supreme Court’s decision in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The indictment in Kotteakos alleged a single conspiracy to obtain government loans by making fraudulent representations, but the government’s proof at trial, by its own admission, demonstrated eight separate conspiracies. The common element in these conspiracies consisted solely of one man who had directed each group; aside from this single defendant, there was no connection among the various agreements. Despite their similar objectives and despite their common leadership, none of the Kotteakos conspiracies aided or benefited from the others, and no member of the various conspiracies (other than the leader) was aware of the others. As the Court aptly described these multiple conspiracies, the pattern established by the government consisted of “separate spokes meeting in a common center” but “without the rim of the wheel to enclose the spokes.” 328 U.S. at 755, 66 S.Ct. at 1243. Absent some connection (the rim) among the various conspirators (the spokes), the government’s proof established multiple conspiracies. The Court held that such proof created a material variance with an indictment charging a single conspiracy and, as such, was reversible error unless the defendants’ substantial rights had not been affected. *1190 328 U.S. at 755-56, 66 S.Ct. at 1243-44. See, e. g., United States v. Elliott, 571 F.2d 880, 900 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978); United States v. Baldarrama, 566 F.2d 560, 565-66 (5th Cir.), cert. denied, 437 U.S. 906, 98 S.Ct. 3094, 57 L.Ed.2d 1136 (1978); United States v. Cruz, 478 F.2d 408, 413-14 (5th Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 259, 38 L.Ed.2d 148 (1973). 6

In this case the government has by its own admission, as in Kotteakos, introduced no evidence of a single conspiracy but has instead rested its case on two distinct multiple conspiracies. The government did not attempt at trial to prove an agreement among all three defendants, but instead sought to establish separate conspiracies comprised of (1) Walker and Sutherland, and (2) Maynard and Sutherland. Like the multiple conspiracies in Kotteakos, these agreements share a common conspirator and similar objectives, but are otherwise unrelated. The government does not suggest that either bribery scheme was dependent on or benefited from the other, and does not dispute the defendants’ contentions that neither Walker nor Maynard knew or should have known of the other. “If there is not some interaction between those conspirators who form the spokes of the wheel as to at least one common illegal object, the ‘wheel’ is incomplete, and two conspiracies rather than one are charged.” United States v. Levine, 546 F.2d 658, 663 (5th Cir. 1977).

Of course, the government need not always demonstrate an actual agreement among the various conspirators, or even actual knowledge of each other, in order to establish a single conspiracy. In Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947), the Supreme Court recognized that in some cases the interde *1191 pendent nature of thé criminal enterprise is such that each conspirator had to have realized that it extended beyond his individual role. This form of conspiracy is often described as a “chain” rather than a “wheel.” Since the success of the criminal scheme depends on the success of each link in the chain, “[a]n individual associating himself with a ‘chain’ conspiracy knows that it has a ‘scope’ and that for its success it requires an organization wider than may be disclosed by his personal participation.” United States v. Elliott, supra, at 901, quoting United States v. Agueci, 310 F.2d 817, 827 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). The government does not contend that the case at bar is a “chain” conspiracy, and the evidence does not suggest one. Indeed, a chain conspiracy would be difficult to imagine on the facts of this case: while two people may in fact conspire together to bribe a single judge, there is no reason why one who has individually so acted must necessarily have assumed that others have also bribed the same judge.

The government does not defend its joint trial in this case on the basis of traditional conspiracy law, i. e., by arguing either that the evidence connected the spokes of a wheel conspiracy by common knowledge or agreement, or that the evidence demonstrates a chain conspiracy. Instead, the government argues that despite the apparent relevance to this case of the traditional multiple conspiracy doctrine, the defendants were properly tried together for a single “enterprise conspiracy” under RICO. The government contends, in brief, that a single conspiracy to violate a substantive RICO provision may be comprised of a pattern of agreements that absent RICO would constitute multiple conspiracies. The government contends that this is so even where, as here, there is no agreement of any kind between the members of the two separate conspiracies. According to the government, these otherwise multiple conspiracies are tied together by the RICO “enterprise:” so long as the object of each conspiracy is participation in the same enterprise in violation of RICO, it matters not that the different conspiracies are otherwise unrelated. Thus, the government argues that it need not demonstrate any connection between Walker and Maynard because the two conspiracies at issue each involved the same RICO enterprise — the Municipal Court of the City of El Paso.

For this proposition the government relies on United States v. Elliott, 571 F.2d 880 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). We held in Elliott that a group of defendants who could not have been tried for a single conspiracy to violate any particular predicate crime could nevertheless be tried for a single conspiracy to violate RICO. Elliott involved six defendants who had committed a variety of unrelated offenses with no common purpose or agreement as to any of the various crimes. We explained:

Applying pre-RICO concepts to the facts of this case, we doubt that a single conspiracy could be demonstrated. Foster had no contact with Delph and Taylor during the life of the alleged conspiracy. Delph and Taylor, so far as the evidence revealed, had no contact with Recea Hawkins. The activities allegedly embraced by the illegal agreement in this case are simply too diverse [unrelated acts involving arson, murder, theft, drugs, and obstruction of justice] to be tied together on the theory that participation in one activity necessarily implied awareness of others.

571 F.2d at 902. Despite these facts, we upheld the government’s joint trial of the Elliott defendants on a single conspiracy count. We defined the RICO enterprise in Elliott to consist of at least five persons who joined together to commit crime for profit — “a myriopod criminal network, loosely connected but connected nonetheless.” 571 F.2d at 899. Since the defendants had conspired together to participate in that enterprise through a pattern of racketeering activity, we upheld their joint trial despite the absence of an agreement as to any particular predicate crime. We held, in short, that “[RICO’s] effect in this case is to free the government from the strictures of the multiple conspiracy doctrine and to allow the joint trial of many persons ac *1192 cused of diversified crimes.” 571 F.2d at 900.

Read out of context, without attention to the facts of the case or to the court’s rationale, Elliott does seem to support the government’s position — i. e., that the defendants’ participation in the same RICO enterprise is enough to tie otherwise multiple conspiracies together even where, as here, there is no agreement of any kind between the members of the two separate conspiracies. 7 Indeed, Elliott has been thus read by some courts and commentators (and, as so read, has been uniformly criticized). See United States v. Zemek, 634 F.2d 1159, 1169 n.12 (9th Cir. 1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981); United States v. Boffa, 513 F.Supp. 444, 471-75 (D.Del.1980); United States v. Cryan, 490 F.Supp. 1234, 1239, 1242-44 (D.N.J.), affirmed without opinion, 636 F.2d 1211 (3d Cir. 1980); C. Bradley, “Racketeers, Congress, and the Courts: An Analysis of RICO,” 65 Iowa L.Rev. 837, 876-79 (1980); Note, “Elliott v. United States : Conspiracy Law and the Judicial Pursuit of Organized Crime through RICO,” 65 Va.L.Rev. 109 (1979).

To put the Elliott holding in its proper perspective, we quote our explanation of that holding at length:

Under the general federal conspiracy statute, “the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.” Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942). In the context of organized crime, this principle inhibited mass prosecutions because a single agreement or “common objective” cannot be inferred from the commission of highly diverse crimes by apparently unrelated individuals. RICO helps to eliminate this problem by creating a substantive offense which ties together these diverse parties and crimes. Thus, the object of RICO conspiracy is to violate a substantive RICO provision — here, to conduct or participate in the affairs of an enterprise through a pattern of racketeering activity — and not merely to commit each of the predicate crimes necessary to demonstrate a pattern of racketeering activity. The gravamen of the conspiracy charge in this case is not that each defendant agreed to commit arson, to steal goods from interstate commerce, to obstruct justice, and to sell narcotics; rather, it is that each agreed to participate, directly and indirectly, in the affairs of the enterprise by committing two or more predicate crimes. Under the statute, it is irrelevant that each defendant participated in the enterprise’s affairs through different, even unrelated crimes, so long as we may reasonably infer that each crime was intended to further the enterprise’s affairs. To find a single conspiracy, we still must look for agreement on an overall objective. What Congress did was to define that objective through the substantive provisions of the Act.

571 F.2d at 902-03 (emphasis added; footnote omitted).

Elliott does indeed hold that on the facts of that case a series of agreements that under pre-RICO law would constitute multiple conspiracies could under RICO be tried as a single “enterprise” conspiracy. But the language of Elliott explains that what ties these conspiracies together is not the mere fact that they involve the same enter *1193 prise, but is instead — as in any other conspiracy — an “agreement on an overall objective.” What RICO does is to provide a new criminal objective by defining a new substantive crime. In Elliott, as here, that crime consists of participation in an enterprise through a pattern of racketeering activity. The defendants in Elliott could not have been tried on a single conspiracy count under pre-RICO law because the defendants had not agreed to commit any particular crime. They were properly tried together under RICO only because the evidence established an agreement to commit a substantive RICO offense, i. e., an agreement to participate in an enterprise through a pattern of racketeering activity.

To be sure, the government did not prove in Elliott that each of the conspirators had explicitly agreed with all of the others to violate the substantive RICO provision at issue. However, the government did prove that, as in a traditional “chain” conspiracy, the nature of the scheme was such that each defendant must necessarily have known that others were also conspiring to participate in the same enterprise through a pattern of racketeering activity. We found the facts sufficient to demonstrate that the defendants knew they were “directly involved in an enterprise whose purpose was to profit from crime,” and that each knew “that the enterprise was bigger than his role in it, and that others unknown to him were participating in its affairs.” 571 F.2d at 904 & n.30. The agreement among all of the defendants in Elliott was an implicit one, but it was an agreement nonetheless.

This reading of the Elliott holding is supported by two more recent decisions of our court. In the first case, United States v. Bright, 630 F.2d 804, 834-35 (5th Cir. 1980), we considered the validity of a single conspiracy indictment under RICO on facts similar to those now before us. The Bright conspiracy centered around the sheriff of DeSoto County, Mississippi, who was accused of conspiring with nine other persons to accept bribes in the conduct of his office. We found the evidence sufficient to support each defendant’s conspiracy conviction, but found that one of the defendants with whom the sheriff had conspired (Bright) had not agreed in any way with the other eight defendants, and that consequently the government’s proof had created a material variance with the indictment. 8 In essence, the government had indicted the defendants on a single conspiracy count, but the government’s evidence had established two separate conspiracies: one between Bright and the sheriff, and the other among the remaining eight defendants and the sheriff.

Our treatment of this variance in Bright suggests, as does Elliott, that the factor that allows what otherwise would constitute multiple conspiracies to be tried together as one RICO conspiracy is a common agreement to commit the substantive RICO offense. We explained:

We are aware that the enterprise conspiracy is designed to avoid the pitfalls of traditional conspiracy law which results in a criminal enterprise being viewed as several small conspiracies rather than one large conspiracy because of different goals and different participants. However, we are also cognizant of the fact that the RICO conspiracy crime still requires an agreement.

630 F.2d at 834 n.52 (citation omitted). What underlay this portion of our decision in Bright, therefore, was the importance of the actual agreement among the parties. The mere fact that Bright had conspired to violate RICO as to the same enterprise as was involved in the other established conspiracy — and had even conspired with a common “hub,” the sheriff — was insufficient justification for a joint trial of the two multiple conspiracies. What was necessary to constitute a single conspiracy was, as in Elliott, an agreement among all of the conspirators.

A second recent case involving a multiple conspiracy question in the RICO context is United States v. Stratton, 649 F.2d 1066 (5th Cir. 1981). The defendants in Stratton argued, in brief, that the government had *1194 “improperly charged multiple conspiracies under the guise of a single conspiracy” by defining the RICO enterprise (Florida’s Third Judicial Circuit) too broadly. Id., at 1074. As in the case at bar, the conspiracy alleged in Stratton involved the bribery of a state judge; and, as in this case, the defendants argued that each agreement to bribe the judge was a separate conspiracy. Since “some coconspirators had no knowledge of all the illicit agreements,” the defendants contended that they could not all be tried in a single conspiracy count. Id. We declined specifically to reach this argument because the facts of the case undermined the basis of the defendants’ position:

[T]he bribery and other illegal agreements were part of a single overall scheme, and . .. the leading characters in the conspiracy knew of the others’ illegal activities, and, indeed, conspired with one another in furtherance of the illegal activities of the enterprise.

Id., at 1073 n.8. In short, all of the defendants in