United States v. Frank Diecidue, Larry Neil Miller, Frank Boni, Jr., A/K/A "Mustache Frankie," Manuel Gispert, Anthony Antone, and Homer Rex Davis

represented ap- defendant When a who attorney defended

peal by same trial, may properly re- the court

him at prejudice

quire counsel to articulate from the failure may have resulted portion proceedings.

to record having attorney, been trial, expected should be to be

present at any improprieties errors or

aware of during por- may have occurred recorded. proceedings

tion of the case,

Id. at 1306. In the instant entire

charge ap- in the record on was included

peal, appellant any objec- does not raise given appellant’s Accordingly,

tions to it.

vague allegations prejudice, we decline ground.

to reverse his convictions on this part

AFFIRMED in and REVERSED in

part. America,

UNITED STATES

Plaintiff-Appellee, DIECIDUE, Larry Miller,

Frank Neil Boni, Jr.,

Frank a/k/a “Mustache

Frankie,” Gispert, Anthony Manuel An

tone, Davis, Rex and Homer Defend

ants-Appellants.

No. 76-4360. Appeals,

United States Court

Fifth Circuit.

Oct. 1979. Gonzalez, Fla.,

Henry Tampa, for Dieci- due. Brecher, Jacksonville,

James O. Fla. (Court-appointed), for Miller. Antinori, Jr., Fla., Tampa, Paul for Dav- enport. Gold, Miami, Fla.,

George D. for Boni. Mitcham, B. Anderson Tampa, Fla. (Court-appointed), Gispert. for Arnold, Fla., Tampa, James for D. Davis. W. Knight, Robert Federal Public De- fender, Tampa, Fla., for Antone. Sidney Glazer, Winfree, M. Katherine T. George Gilinsky, Washington, C., D. plaintiff-appellee. GODBOLD,

Before SIMPSON and RO NEY, Judges. Circuit RONEY, Judge: Circuit appeal In this challenges we consider to convictions for and conspiracy substantive crimes under the Racketeer Influenced and Organizations (RICO), Corrupt Act seq., C.A. 1961 et various federally and § proscribed racketeering. acts of The six defendants us among before were charged thirteen in a twelve-count indict- ment ranging period with offenses over a May May between 1975 and 1976.1 Follow- 1. HARVEY INDICTMENT DAVENPORT GEORGE ABRAHAM DE FEIS Jury charges: The Grand ROSATI, JAMES and COUNT ONE STONE, EDWARD 30, 1975, May 1. From on or about and herein, unlawfully, willfully, the defendants did continuously up including thereafter filing to and combine, knowingly conspire, confederate, and indictment, date of the of this in the together, agree and to ... commit cer- elsewhere, Middle District of Florida and States, against tain offenses the United to wit: FRANK DIECIDUE Code, to Title violate Section VICTOR MANUEL ACOSTA 1962(c). ANTHONY ANTONE part conspiracy 2. was a It said that the MANUEL GISPERT enterprise defendants associated with ELLIS MARLOW HASKEW 1961(4), as defined Section Title United BENJAMIN GILFORD FOY Code, enterprise engaged States which was LARRY NEIL MILLER in BONI, JR., FRANK and the activities of commerce, affected a/k/a interstate group “MUSTACHE FRANKIE” to wit: a of individuals asso- engage HOMER REX DAVIS in fact to various ciated in criminal REPORTER, 2d SERIES 603 FEDERAL conspiracy part It further 12. was

Note 1—Continued ANTONE, that the defendants ANTHONY including (1) murders, activities “contract” ROSATI, DE GEORGE ABRAHAM JAMES (2) robberies, (3) . . . armed ... DAVENPORT, FEIS, LARRY NEIL HARVEY narcotics, possessing dealing and . HASKEW, MILLER, oth- and MARLOW ELLIS (4) possessing dealing and in counterfeit United fraudulently possess and distribute ers would currency, (5) possessing States dealing and ... currency part to States counterfeit bills, Treasury in stolen States criminal activities. their various finance , (6) justice, . . obstruction of . . . conspiracy part of the It further 13. part conspiracy It 3. further of the ANTONE, ANTHONY VIC- the defendants conspire that the defendants would to conduct ACOSTA, ABRA- GEORGE TOR MANUEL participate, directly indirectly, ROSATI, FEIS, ELLIS MAR- DE JAMES HAM enterprise’s through conduct of the pattern affairs HASKEW, possess and and others would LOW racketeering activities. Treasury attempt stolen United to sell part conspiracy 4. It a further of the criminal part their various to finance bills ANTHONY, ANTONE, the defendants activities. GISPERT, MANUEL KEW, ELLIS MARLOW HAS- ACTS OVERT and BENJAMIN FOY GILFORD solicited conspiracy said of the furtherance received “contracts" 14. to murder various in- , acts, among following oth- overt dividuals. . . part conspiracy It committed: 5. was a further of the ers were Florida, 1975, Tampa, that ranged June defendant about FRANK DIECIDUE ar- a. In or GISPERT, DIECIDUE, for a murder MANUEL contract on one Jose Man- FRANK unlawfully, uel Garcia. HASKEW did MARLOW ELLIS attempt part premeditation conspiracy willfully It 6. was a further and with shotgun. utilizing that the defendant VICTOR MANUEL ACOS- Jose Manuel Garcia murder TA hired the defendant ANTHONY ANTONE FRANK about June b. orOn arrange for the “contract" murder of Ber- FRANKIE”, JR., BONI, “MUSTACHE a/k/a Dempsey, Rodriguez, nard Cesar Richard and ELLIS GISPERT to MANUEL transferred Cloud, and others. thirty (30) approximately HASKEW MARLOW part conspiracy 7. It was further a of said quantity together dynamite with a sticks of ACOSTA, that VICTOR MANUEL ANTHONY Junction, caps Florida. blasting near Yeehaw ANTONE, HASKEW, ELLIS MARLOW MANUEL June about c. On or BENJAMIN FOY GILFORD murdered Richard dis- HASKEW MARLOW ELLIS GISPERT prevent testifying Cloud him from . BONI, JR., a/k/a FRANK cocaine tributed part 8. It was a further FRANKIE”, Dis- in the Southern “MUSTACHE ANTONE, the defendants ANTHONY Florida. trict of GISPERT, MANUEL and ELLIS MARLOW ANTHONY about June d. On dynamite HASKEW would obtain from the de- device a destructive manufactured ANTONE BONI, JR., fendants FRANK a/k/a “MUS- Tampa, Florida. FRANKIE”, DAVIS, TACHE and HOMER REX 1975, Tampa, 28, in June or about e. On and would manufacture destructive devices and ANTONE, Florida, MANUEL GIS- triggering ANTHONY carry mechanisms to out the afore- placed PERT, HASKEW ELLIS MARLOW and mentioned “contract” murders. by operated on a vehicle part device conspiracy 9. It destructive was a further of the Garcia. defendants Jose Manuel ELLIS HAS- MARLOW KEW, GISPERT, 29, 1975, Tampa, MANUEL BENJAMIN FOY in about June f. On or GILFORD, and Florida, ANTHONY ANTONE would in referred to destructive device handguns, shotguns, high utilize automatic powered hicles, exploded, injuring Manuel “e” Jose Act Overt rifles, silencers, specially equipped ve- Garcia. explosive and in devices their efforts to g. 1975, July In or about Jose Manuel Gar- carry out various “contract” murders. cia MANUEL hired GISPERT to murder Cesar part conspiracy 10. It was a further Rodriguez. the defendants ELLIS MARLOW HAS- 28, 1975, July h. or MANUEL On about KEW, GILFORD, BENJAMIN FOY and LARRY approximately twenty (20) GISPERT received NEIL MILLER would commit various armed dynamite sticks of from HOMER REX DAVIS money property robberies to obtain and other Tampa, in Florida. part operation. in to finance the murder July 29, 1975, i. or On about ANTHONY part 11. It was further ANTONE manufactured and constructed a de- ANTONE, the defendants ANTHONY Tampa, structive GISPERT, device in Florida. MANUEL VICTOR MANUEL ACOSTA, BONI, JR„ 30, 1975, FRANK j. July a/k/a “MUS- On or about MANUEL GIS- FRANKIE”, TACHE ELLIS MARLOW HAS- PERT and ELLIS MARLOW HASKEW traveled KEW, engaged possession, and others in Florida, Park, Tampa, Florida, from to Winter part sup- sale and distribution of in cocaine by in an automobile furnished VICTOR MANU- ply part their own narcotic use and in ACOSTA, to fi- purpose murdering EL nance their various criminal activities. Dempsey. Bernard UNITED STATES v. DIECIDUE (1979) as 603 F.2d 535 Cite Jury charges: The Grand further

Note 1—Continued 31, 1975, Tampa, July in COUNT TWO k. On or about MAR- Florida MANUEL GISPERT and ELLIS 30, May 1. From on or up about placed a on LOW HASKEW destructive device including and filing the date of the of this Rodriguez. by indictment, Cesar a vehicle owned in the Middle District of Florida elsewhere, and 31, 1975, July Tampa, in l. On or about FRANK DIECIDUE Florida, to in the destructive device referred VICTOR MANUEL ACOSTA Kadyk. exploded, injuring Overt Act "k” Peter ANTHONY ANTONE August 1975, MAR- m. In or about ELLIS MANUEL GISPERT telephone HASKEW a conversation LOW ELLIS MARLOW HASKEW Florida, Tampa, with FRANK DIECIDUE in GILFORD, BENJAMIN FOY and concerning payment in for services rendered MILLER, LARRY NEIL Jose bomb- connection with the Manuel Garcia herein, being persons the defendants associated ing. enterprise by an as defined Section , n. . . 1961(4), Code, Title United States which September 17, 1975, o. orOn about ELLIS enterprise engaged In and the activities of MARLOW and HASKEW BENJAMIN FOY commerce, which affected Interstate to wit: a attempted to Rodri- GILFORD guez murder Cesar group of individuals associated in fact to en- shotgun with a sawed-off double barrel gage in various including (1) criminal activities by which had EDWARD been furnished murders, (2) "contract” beries, ... armed rob- STONE. (3) possessing dealing ... in 17, 1975, narcotics, p. September prior (4) possessing After ... dealing , 23, 1975, currency, in counterfeit HASKEW October ELLIS MARLOW . . (5) possessing dealing in and EDWARD discussed modification stolen STONE bills, Treasury (6) States high powered ... of a van from rifle could obstruction justice, unlawfully, willfully, ... did future be fired for use In contract murders. knowingly participate, and ly conduct and direct- q. September. ELLIS On or about indirectly, in the conduct of such enter- MARLOW HASKEW and BENJAMIN FOY prise’s through pattern affairs racketeering robbery an armed on Be- GILFORD committed activities. Emery Tampa, atrice Florida. pattern racketeering 2. The activities as MAN- r. In or about October VICTOR by 1961(1), defined Section Title a .32 UEL furnished a silencer and ACOSTA Code, engaged in and conducted pistol AN- caliber automatic to ANTHONY defendants charged includes the Federal violations Tampa, TONE Florida. Nine, Ten, in Counts Eleven and 1, 1975, ELLIS s. or about October On indictment, alleged Twelve which are and BENJAMIN FOY MARLOW HASKEW incorporated in this Count reference as robbery on A. GILFORD committed armed fully herein, if set forth the State murder of- Lakeland, M. Lee Florida. chargeable fenses under Sections 782.04 and 15, 1975, ELLIS about October 777.04, t. On or Annotated, Florida Statutes Volume HASKEW, GIL- BENJAMIN FOY MARLOW FORD, robbery chargeable and the State offenses un- MILLER committed NEIL 812.13, and LARRY Annotated, der Section Florida Statutes Zeph- robbery Fawcett in Marina an armed Volume which are described below: yrhills, Racketeering Involving Florida. a. Acts of Murder: (1) One, 23, 1975, as [same Count BENJA- overt act a.] October u. On or about (2) 29, 1975, Tampa, On about June Cloud murdered Richard MIN FOY GILFORD Florida, HASKEW, ELLIS MARLOW MANUEL Tampa, Florida. GISPERT, ANTONE, ANTHONY and FRANK . unlawfully, willfully, did DIECIDUE and with w. . . . premeditation attempt to murder Jose Manuel 1975, MAR- ELLIS November x. or about Garcia, being, utilizing a human a destructive approximately one HASKEW delivered LOW device. in kilogram ANTONE to ANTHONY of cocaine 30, (3) 1975, July orOn about in Winter Tampa, Florida. Park, Florida, ANTONE, ANTHONY MANUEL y. . . . GISPERT, and ELLIS MARLOW HASKEW did 1975, 20, LARRY December or about z. On unlawfully, willfully, premeditation and with States passed United counterfeit NEIL MILLER attempt Dempsey, to murder Bernard a human Clearwater, currency Florida. in being. a.a. . . . (4) 31, 1975, July Tampa, On or about in 1976, 26, February AN- Florida, or ANTONE, b.b. On about ANTHONY MANUEL GIS- possessed approximately PERT, THONY ANTONE and ELLIS MARLOW HASKEW did un- fifty dollars eight hundred lawfully, willfully, nine premeditation thousand and with at- currency ($8,950) tempt Rodriguez, United In counterfeit to murder Cesar a human Tampa, being, utilizing in Florida. a destructive device. 1962(d), (5) 17, 1975, September and Sections 1961 or about All in violation of On in Tam- Florida, pa, 18, ANTONE, Code. ANTHONY Title United States BENJAMIN REPORTER, 2d SERIES 603 FEDERAL regarding 5812(a) trans- such ments of Section Note 1—Continued with; possession complied said had fer being been GILFORD, HAS- and ELLIS MARLOW FOY 26, 5861(b), Section Title in of violation pre- unlawfully, willfully, and KEW did 18, Code, 2, and Section Title United States attempt Rodriguez, meditation to murder Cesar United States Code. being, a human with a barrel sawed-off double Jury charges: further The Grand shotgun. SIX COUNT (6) 23, 1975, Tampa, On or about October 1975, Florida, 31, Tampa, July at orOn about Florida, ACOSTA, VICTOR MANUEL ANTHO- Florida, in the Middle District ANTONE, GILFORD, NY BENJAMIN FOY and ANTONE ANTHONY unlawfully, ELLIS MARLOW HASKEW did knowingly, and MANUEL GISPERT premeditation and with murder HASKEW, ELLIS MARLOW Cloud, being, Richard a human herein, knowingly possessed a the defendants Racketeering Robbery: Involving b. Acts of firearm, device con- a destructive that is (1) [substantially One, same as Count overt blasting caps, dynamite, electric sisted of act t.] switch, battery, an electrical . 9-volt and 1961, 1962(c), All in violation of Sections being possession a violation of Section said 1963, 2, 18, and Title United States Code. 26, Code, 5861(c), United States Sec- Title and Jury charges: The Grand further 2, 18, States Code. United tion Title COUNT THREE charges: Jury The Grand further 1975, 28, Tampa, On or about June at Flori- SEVEN COUNT da, Florida, in the Middle District of Florida, 31, 1975, Tampa, July at orOn about FRANK DIECIDUE Florida, District of in Middle ANTHONY ANTONE ANTHONY ANTONE GISPERT, MANUEL and and MANUEL GISPERT HASKEW, ELLIS MARLOW HASKEW, ELLIS MARLOW herein, knowingly possessed, the defendants herein, by and aided abetted the defendants abetted, counseled, commanded, and aided and other, maliciously damaged de- and each stroyed, of, firearm, procured possession and vehicle, explosive, by means of dyna- is a destructive device which consisted of Rodriguez . used Cesar interstate mite, blasting caps, battery, electric a 9-volt affecting commerce and commerce, activities interstate switch, posses- and an electrical . . . said injuries personal Pe- and caused being 5861(c), sion a violation of Section Title 2, Kadyk; 844(i) and ter in violation Sections 26, Code, 2, 18, United States and Section Title 18, States Code. Title United States Code. charges: Jury further Grand Jury charges: The Grand further EIGHT COUNT COUNT FOUR Florida, Tampa, at 29, 1975, In or October about Tampa, On or about June at Flori- Florida, da, in the Middle District Florida, in the Middle District of ANTONE ANTHONY FRANK DIECIDUE MANUEL GISPERT ANTHONY ANTONE ELLIS HASKEW GISPERT, MARLOW MANUEL and and HASKEW, BENJAMIN FOY GILFORD ELLIS MARLOW MILLER, herein, LARRY NEIL defendants and aided abetted each herein, knowingly received and other, the defendants possessed, maliciously damaged destroyed, by and abetted, counseled, and and aided explosive, means of an by a vehicle . . . used receipt commanded, procured induced Jose Manuel Garcia interstate commerce firearm, is, possession a silencer of a commerce, affecting and in activities interstate pistol which had automatic .32 caliber personal injuries and caused to said Jose Man- defendants in violation been to said Garcia; transferred 844(i) uel in violation of Sections Code, Chapter Title Title United States Code. requirements Section that none of Jury charges: further Grand 5812(a) regarding com- such transfer been COUNT FIVE being with; plied possession in violation of said 29, 1975, July Florida, Tampa, On or at about 5861(d), 5861(b) Title Florida, Sections in the Middle District of States Code. ANTHONY ANTONE charges: Jury further The Grand MANUEL GISPERT NINE ELLIS HASKEW MARLOW COUNT DAVIS, in the Middle REX HOMER On about October Florida, herein, knowingly possessed, MANUEL ACOS- District of VICTOR defendants ANTONE, abetted, TA, counseled, commanded, ELLIS MARLOW aided and procured and ANTHONY of, HASKEW, firearm, possession FOY GILFORD did and BENJAMIN is a knowingly corruptly unlawfully, willfully, dyna- and destructive device which consisted of impede mite, blasting caps, the due ad- battery and electric endeavor to obstruct 9-volt and switch, justice United Dis- of electrical which had ministration been transfer- Florida; 26, Chapter 53, District Middle of red trict Court for the to them violation Title is, willfully, knowingly Code, [they] require- and with did in that none trial, ing a lengthy jury the six enterprise defendants describes an membership whose every almost count in were convicted on grew its criminal interests diversified. as they charged.2 Having founded, been the Govern- enterprise carefully considered the extensive trial rec- proposed, by ment defendant Diecidue who ord the many legal argu- and and diverse sought protection vending of his machine appeal, ments made on the Court concludes through business the murder of a new com- Diecidue, the convictions of defendants supposed- Diecidue petitor, Manuel Garcia. Boni and Davis must be reversed and the Gispert ly recruited defendants Antone and Antone, Gispert convictions of and Miller carry 1975 to out the April May must be affirmed. crime. rep- Each defendant has been separately In June brought Antone Marlow Haskew appeal resented on this and each has filed a into enterprise to drive for Gispert separate appropri- brief. Each counsel has while he attempted to shoot Garcia. Gis- ately sought advantage for his client the pert obtained the shotgun for the attempt any arguments relevant made other and told Haskew that Diecidue was to pay argued counsel. Each has appli- also issues $20,000 the three for the killing. Twice opinion, cable to his client alone. In this Haskew Gispert and drove to Garcia’s hotel briefly stating after the facts adduced at with a loaded shotgun but failed to locate trial, we treat several issues which could him. presented affect all of the convictions The next attempt on Garcia’s life was argu- review. We find that none of these made with explosives. May Gispert had any ments merits reversal of conviction. met with defendant Miller and We Willie No- then discuss issues they additional as riega purchased and had gun defendant, affirming focus on each from and re- Miller. At that meeting versing as Miller proceed. Noriega we asked explosives obtain suggested he deal Background with Gispert through Miller so Miller could Although the facts are greater treated in up hike price and make some money. detail conjunction herein in with discussion Noriega was never able supply the re- of specific issues appeal, raised on an over- quested explosives. view of the conspiracy’s rough- activities in During ly Gispert the last week of chronological June order will be useful. Haskew plaza drove to a service on the The record evidence relevant to the issues highway Tampa they from to Miami where on appeal, favorably viewed most to the Government, States, picked up dynamite Giasser from defendant Boni. v. United 60, 80, 457, dynamite (1942), transported 86 L.Ed. 680 back to An- utter, defraud, lawfully pass, and with intent to obligation publish of the Unit- a counterfeit Cloud, premeditation wit- murder Richard States, Department Gayfers at ed ... testifying ness, prevent witness from said Store, knowing obligation said to be coun- then . . the United States District Court before terfeit, Title of Section in violation prevent testifying and to said witness from United States Code. Jury before a Federal Grand Jury charges: further The Grand All in violation of Sections Title COUNT TWELVE 18, United States Code. 26, 1976, Tampa, February at On or about Jury charges: The Grand further Florida, Florida, Middle District COUNT TEN unlawfully, did defendant ANTHONY ANTONE Tampa, In or about November at Flori- posses- defraud, keep in his da, Florida, intent to and with in the Middle District of ANTHO- falsely made, forged, ANTONE, herein, conceal NY sion and the defendant did know- States, ingly intentionally possess obligations with intent counterfeited , obliga- approximately kilogram distribute caine, one that such co- he then knew . and . counterfeit; ... in violation of Section of Section in violation tions were 841(a)(1), Title United States Code. States Code. Title Jury charges: The Grand further not rele- which are of the indictment [Portions COUNT ELEVEN deleted]. have been to this decision vant 20, 1975, On or about December in Clear- Gispert acquitted 2. Defendant water, Florida, Florida, Count in the Middle District of Eight. the defendant LARRY NEIL MILLER did un- constructed a where Antone proceeds house tone’s committed several robberies. The Gispert and triggering device and showed enterprise activities or were used to finance dynamite the to it. Haskew how to attach support participants. Antone, Gispert and Haskew June 28 On equipment obtained enterprise car. The the bomb to Garcia’s attached Septem- carry out the contract murders car and in- destroying the exploded, device pur- Haskew ber and October. Antone and juring Garcia. a van which was modified into an chased to believe Gispert led Garcia by cutting shotgun “assassination” vehicle by been ordered attempt on his life had gave slits in the sides. Antone also Haskew owner, Tampa bar and Rodriguez, a Cesar pistol a .32 caliber automatic and silencer $20,000 Garcia, turn, for Rodri- offered from Acosta. which he had obtained Gis- obtained mur- Gispert also guez’ murder. weapon pert given had to Acosta to codefendant Victor der contracts from bought Miller the am- procure a silencer. Dempsey, Bernard the lives of Acosta on weapon munition for the and he and Has- Cloud, Attorney, and Richard former U. S. kew test-fired it. officer. Tampa police a former targeted Richard for murder Cloud drove and Haskew July Gispert In because, Tampa policeman, he ha- as a had six ounces they delivered Miami where drug rassed Acosta in his business and was Acosta, to Boni. cocaine, obtained from expected testify in October at the trial divided the Antone Haskew and Gispert, a close friend of Acosta’s. On October 23 profits. home, drove to Cloud’s Haskew and Gilford July Later in the same trio decided to block, and while Haskew circled the Gilford explo- carry Rodriguez out the murder with fatally with the silenced .32 cali- shot Cloud procured dynamite Gispert sives. pistol. ber Davis, through defendant Antone construct- After the murder Haskew traveled to Gispert triggering ed a and Has- device obtaining Miami where he discussed coun- placed When the bomb kew the bomb. money Harvey Davenport terfeit destroyed detonated the car was and the DeFeis, George who were also indicted as driver, friend, injured. family enterprise. In coconspirators in the No- Gispert and Haskew made several unsuc- trip vember Haskew made another to Mi- attempts cessful to locate and kill Dempsey cocaine, kilogram “speed” ami and stole a in August September. Acosta had is- capsules, jewelry a coin collection and from sued the Dempsey’s contract on life be- ring DeFeis. The cocaine and diamond cause, as a Attorney, Dempsey U. S. Antone, were who sold the turned over to prosecuted organized several figures crime ring, cocaine to Acosta. Another the coins $40,000 and Acosta owed him over legal speed given to Miller. fees for work done as a defense attorney leaving prosecutor’s after office. purchased In December Haskew from bills, $40,000 Davenport in counterfeit some September enterprise gained In an- Florida, passed of which Haskew New other when member Haskew assisted Ben- Jersey Pennsylvania. attempted Miller jamin escape prison. Gilford to from Gil- of the bills and used a counter- sell some agreed ford triggerman to serve as on five purchase cologne feit hundred dollar bill to Demp- murder contracts issued Acosta. department in a store. Clearwater sey, Rodriguez Cloud and were identified as three of the intended victims. Later Miller, January according In to Has- September Haskew and Gilford unsuccess- testimony, get Haskew to him kew’s asked fully attempted Rodriguez to murder with a weapon with a silencer so that he and shotgun during sawed-off a car chase could make a hit on a Scarface Rivera man through Tampa. testify living in a trailer who intended to September against Haskew them. Haskew was never able to and October Gilford, Miller, joined supply weapon. on one occasion

545 although attempted legal entity.” in fact not a 18 February Gilford to recruit remaining complete participant 1961(4). another to This already U.S.C.A. Court has § ar- subsequently 1961(4) murder contracts and was rejected the contention that does § shortly rested. was arrested there- Haskew encompass groups only purpose whose is confessed, setting after. Both forth See, g., engage illegal to behavior. e. conspiracy. details of the Elliott, 571 United States v. F.2d 897 denied, (5th 1978), 489 n.17 Cir. cert. U.S. Sufficiency of Indictment 58 L.Ed.2d 844 objections Defendants raise several to Furthermore, nothing in or in the Act of the a Count One indictment which interpret opinions by which this Court has charged. conspiracy is RICO Section suggests enterprise ed it that the must have 1962(d) of the Act makes unlawful con- a operations functioning conducting been and 1962(c) spiracy to violate which in turn § of pursuit goal prior a common to its provides: involvement in racketeering activities. It be for any person shall unlawful objections recently Similar raised in employed by or associated with en- any Elliott, supra, United States v. in which six in, terprise engaged of or activities charged defendants were in essence with affect, foreign or com- interstate of conspiring to conduct the affairs an en merce, participate, directly to conduct or thefts, terprise designed to commit fence or indirectly, in the of en- conduct such property, stolen in drugs traffic and ob terprise’s through pattern affairs of justice. struct The Court concluded that racketeering un- activity or collection of such and loosely an informal connected lawful debt. “myriopod criminal network” was indeed 18 1962(c). U.S.C.A. § scope within the the Act. 571 F.2d at of Malatesta, 899. also v. arguments See Despite re defendants’ (5th 1978), banc, flecting 583 F.2d 748 aff’d en ambiguity a tireless search Cir. indictment, (1979) operate 590 F.2d 1379 (conspiracy omission in the we are con to illegal adequately alleged marijua vinced that Count scheme obtain money, One to extortion, 1962(d) through all na kidnap essential elements of a offense and cocaine § robberies); and fairly pings informed defendants of v. States charges McLaurin, against (5th them. 557 F.2d 1064 Cir. Defendants first contend the enter- (1978) (conspiracy L.Ed.2d to conduct prise they allegedly whose affairs conspired prostitution ring of through affairs several to scope conduct not one within the of prohibited travel); acts of interstate they assert, enterprise, Act. The must Morris, F.2d States be an group goals identifiable with finite (indictment 1976) alleged sufficient enter separable and an existence from pattern “ prise by describing group ‘a defendants racketeering of activity to which some or all . in fact associated to defraud of ultimately its members resort. “[A] illegal games persons card who had trav crooks,” bunch argue, “who defendants ”). . elled to Nevada.’ decide to along, do whatever comes criminal otherwise, 'buck,’ or in order make is We conclude that Count the in- One of utterly . anything removed from properly charged dictment Congress had in mind.” 1961(4) conduct affairs enterprise of § activities, recognize through racketeering the nature

Defendants fail to the breadth stated, precisely of which was and ade- “enterprise” the Act’s definition the en- expansive interpretation application quately its informed defendants that terprise they conspired to “Enterprise” this Court. whose affairs defined individual, “any corpo- they, include associ- partnership, conduct one which their ration, association, ation, legal or other had formed. See United entity, Hawes, any group union individuals associated Each of the substantive offenses was intro enterprise

That the formation of the conspiracy may the conception conspiracy” have part duced as “a further simultaneously way no occurred detracts again in Count One’s appeared and most applicability. from the Act’s alleged catalogue thirty overt acts have been committed “in furtherance of the allege Defendants further that Count objects conspiracy and to effect said duplicitous One is by charging more than whole, allegations thereof.” Taken as a Although one conspiracy. defendants claim charge sufficiently defend of Count One allegations to find in the of Count One to separate conspiracies enterprise specific to form an ants with intent commit the de through Purvis, pattern conduct its affairs a scribed offense. racketeering activity, join existing to an 853, (5th de 859 Cir. enterprise, engage purchase to nied, 1229, 440 99 U.S. S.Ct. 59 cocaine, possess sale of to and distribute (1979), L.Ed.2d 463 this Court observed: possess currency counterfeit and to and at “Conspiracy” incorporates willfulness and bills, tempt Treasury to sell stolen U. S. specific Supreme As intent. Court reasonably only Count One describes one in Frohwerk stated v. United States [249 conspiracy, the conspiracy announced in 561], U.S. S.Ct. 63 L.Ed. paragraph one to violate 18 U.S.C.A. accomplish object “intent to an cannot be 1962(c). 1962(c) prohibits Section neither § alleged clearly by stating more than forming enterprise joining nor the parties conspired accomplish to it.” [cita- of one. Neither does it reach isolated crimi tion omitted]. nal acts drug possession such as sales or Defendants assert the indictment stolen or money. Conspiracy counterfeit charge failed to offenses under 18 U.S.C.A. 1962(c) violate only conspiracy can be § 1962 because an essential element of the participate § conduct and in the conduct of an offenses, enterprise’s enterprise’s effect of the activities through pattern affairs a commerce, racketeering allegations alleged on interstate activities. ad was not dressed to the various substantive specificity.3 offenses with sufficient part conspiracy committed as of the are Rule Federal Rules of Criminal merely descriptive single overall Procedure, agreement states: “The indictment . and do not render the count duplicitous. plain, shall be See Braver man v. United concise and definite written States, 49, 54, constituting 87 L.Ed. statement of the essential facts charged.” the offense The indictment must inform defendants of the nature and cause Defendants also attack Count One for permit preparation of the accusation to aof failure adequately allege knowledge, defense and must equip defendants with charged. material element in the crime See plead jeopardy sufficient facts to former Malatesta, F.2d at subsequent prosecution for the of same They suggest 759-60. indictment ¶ fense. 8 Moore’s Federal Practice 7.04 at alleged should perform have (rev. 1978); 7-15 2d ed. United States v. 1962(c) “knowing offenses § of the enter- Contris, 592 F.2d 893 An prise” and commission of each of the recited specifically indictment which states all ele pattern offenses which describe the of rack- ments of the offense also ensures that the eteering activity knowledge “with that the grand jury charged such an offense and part pat- conduct was intended to be of a parts charged racketeering.” tern of that critical offense Paragraph one of alleges “willfully subsequently by the count were not contributed defendants knowingly” conspired 1962(c). prosecutor to violate alone. Van Liew v. United § See briefs, guments 3. This issue is of codefendants’ we consider raised connection with Count Two, applies One of the indictment defendant Boni who the issue as it to Count the sub- However, violation, charged only in that count. be- stantive RICO as well. adopted cause defendants have all relevant ar- States, 1963); 321 F.2d 664 United ment without reference grand to the jury.” Nance, States v. 174 U.S.App.D.C. 174 U.S.App.D.C. at 533 F.2d at 701. (D.C.Cir. 1976). F.2d 699 Similarly, Farinas, in United States v. F.Supp. (S.D.N.Y.1969), the court Defendants do not contend that insuffi- dismissed charged an indictment which proof cient of effect on interstate commerce violation of the Selective Service Act of was adduced at trial. The Government’s 1967 in defendant’s obey refusal “to certain suggested case interstate commerce was af- specify orders” but failed to the nature of fected the use of interstate communica- disobeyed. orders tions long facilities to make phone distance calls, destruction of one or more automo- The nature of the omissions in these cases biles used in affecting activities interstate persuades us that this indictment need not commerce, receipt dynamite in Florida fall theory. under the same The distinction state, manufactured outside the posses- is that between a defendant’s constitutional cocaine, sion of federally controlled sub- right to know what charged offense he is rather, stance. complain, Defendants that with and his need to know the evidentiary effect on interstate commerce alleged details which will be used to establish his terms, in conclusory generality the of which commission of that offense. Van See Liew gave the Government unfettered discretion States, 670; v. United 321 F.2d at Carbo v. choosing facts with which prove it at States, United (9th F.2d 732-33 trial. 1963) (where Cir. charges indictment Hobbs conspiracies Act to commit extortion and

Clearly the indictment subject does not transmit threats interstate defendants communica- danger to the being retried tions, manner in which interstate commerce for the participation same with the same to be affected alleged). need not be enterprise on merely a theory different effect on interstate commerce. Nor can we indictment, In this explicit discussion conclude that defendants were hampered in of the enterprise’s effect on interstate com- preparation the of their defenses or that the merce would virtually contribute nothing to grand jury might charged not have the defendants’ understanding of the nature of offenses of which defendants were convict- the charged offenses which were conduct- ed. ing an enterprise’s through affairs racke- teering activity and conspiracy to do the charged indictment interstate same. This is not a case where the element commerce effect RICO alleged terms, nonspecific effect on inter- and substantive offenses in language the commerce, state might encompass conduct itself, the statute practice generally which which would not come within the guarantees statute’s sufficiency required if all ele See, g., reach. Farinas, e. United v. ments are States included in statutory the lan F.Supp. at 854. are guage. Neither we faced Davis, United States v. 592 F.2d with a 1325,1328 allegations variance between (5th of in- 1979). Cir. Where the statu terstate commerce effect in the tory indictment generic terms, definition contains how ever, proof through at trial the may indictment defendants simply recite might generic the have been convicted on some terms but “must other spe state the cies, charge than that must made in the particulars.” descend to indictment. — it Malatesta, Cruikshank, United v. See United v. States States 583 F.2d at (where 754-56 charged L.Ed. 588 RICO indictment in- aspects general terms, terstate commerce Nance, United States v. supra, for proof described, of acts though of kind acts example, pretenses convictions on false not specifically indictment, mentioned counts were vacated because the indictment permissible possi- absent demonstration of failed any to set forth represen- false ble prejudice). observed, tations made. The court “the Attorney States would have a free We find no indication in the record or in hand to insert part the vital argument the indict- the on appeal made that defend- instructions, was done that the act means any way preju- or in surprised

ants were not be- intentionally and voluntarily and interstate generality diced the or accident. of mistake subse- cause evidence allegation or commerce The in- it. establish introduced to quently term has “willfully,” as that word therefore, was, sufficient. dictment in these time time to been used from com- the act was instructions, means Jury Instructions with purposedly, voluntarily and mitted objections something to the the raise to do specific Defendants intent the jury bad forbids; say, judge’s instructions is to trial law required for disregard intent knowledge disobey or issues of purpose either single multiple or conspiracy conviction law. charge, con jury conspiracies. Because together, instructions Considering these whole, conveyed the clearly sidered as Evans, 471 n. v. jury which the should legal principles by they present an 1978), we find (5th Cir. decision, defendants’ we find made its have and do not of the law statement accurate merit. objections to be without charge requested materially from differ Fontenot, 483 F.2d ap complaining defendant by the Fontenot, 483 proved in United States knowledge and Regarding conspirators’ States, v. United Cf. Rubin F.2d at 323-24. jury as intent, judge trial instructed 1969), cert. de follows: 24 L.Ed.2d nied, of a con- may become a member One “knowing (where “willfully” and (1970) 503 knowledge of all full spiracy without verdict implicit in jury, ly” defined to or the the unlawful scheme the details of necessary crimi had finding defendant of the other and identities of all names conviction). intent for nal defendant, So, if a alleged conspirators. in the trial also assert error Defendants understanding of the unlawful with an refusal to instruct: judge’s knowingly and will- plan, a character of charges de- 1 of the indictment Count on one joins unlawful scheme fully in an conspiracy. in one participation fendants’ him occasion, sufficient to convict that is shows the evidence you find that Should though he had not even conspiracy conspiracies, number of of a the existence stages in the earlier participated at defendants not must find the you then only a though played he and even scheme 1. guilty as to Count conspiracy. part in the minor be is incorrect course, requested at the scene instruction presence mere The Of event, found to exist conspiracies or alleged of an transaction cause one conspiracy among single various well be the similarity might mere of conduct Taylor, 562 F.2d they may have v. charged, and the fact that United States persons denied, other, 432 may Cir.), have U.S. 1345, (2d each cert. associated with 2958, (1977); discussed com- together 53 L.Ed.2d assembled 97 S.Ct. interests, Tramunti, neces- does not 513 F.2d mon aims and United States denied, of a the existence sarily proof Cir.), establish U.S. (2d 1107-08 Also, jury who has no person (1975), or the conspiracy. 46 L.Ed.2d hap- conspiracy, conspiratorial but who knowledge of a different could find several some forma way steps which advances in the pens to act in a agreements that conspiracy, does purpose conspiracy. of a object or larger, overall tion of conspirator. 532-33 thereby Perry, not become Cir.), cert. “know- defined judge subsequently The L.Ed.2d “willfully” as follows: ingly” and single and following instruction term “knowingly,” as The word place: given in its conspiracies was multiple time in these time to has been used from jury instructed, the court’s attention that venire regard You are further alleged in Count enter the court- conspiracy observing to the offense defendants separate conspira- proof by of several Marshals. room flanked single, proof potential prejudice overall cies is not The court observed in the indictment un- conspiracy charged appearing defendants by had been avoided conspiracies which of the several less one suits and ties and nonuni- business proved single conspiracy is the badges their formed marshals without you charges. the indictment What must was denied. the motion single is determine whether the con- do when, during made A second motion was spiracy charged in the indictment existed selection, juror at least one was identi- jury conspirators. between two or more If group people in a who observed fied existed, you conspiracy find that no such being brought into the court- defendants you acquit then must the defendants as house in handcuffs. The motion was de- However, you 1. if are satisfied Count sought cautionary in- nied. Defendants no existed, you that such a must struction, interrogation of the iden- nor were the members of that determine who juror requested. tified conspiracy. itself, During days the early of the trial you particular If find that a defendant juror third motion was filed after a ob- conspiracy, is a member of another being led from served several defendants indictment, charged the one then the courthouse in waist chains and hand- you acquit must that defendant. In oth- alternatively sought cuffs. Defendant words, guilty you er to find a defendant juror juror, ques- have that struck. must find that he was a member of the request, the court at tioned defendants’ conspiracy charged in the indictment and replied impartiality that her would not be other, separate conspiracy. not some by the she influenced incident and that assertions, Contrary to defendants’ not discussed and would not discuss it with instruction neither “directs a verdict” on jurors. Again other Mistrial was denied. single conspiracy of a nor existence sought that handcuffs no instruction was permits jury guilty to find defendants guilt. are not indicia of long belongs any single as as each to con- spiracy suggested by whose existence was are, Defendants crimes of accused of proof allegations and fit the various course, of physical entitled to indicia inno instruction, within The identi- Count One. jury cence in their trials. This Court has approved cal to that in United v. States declared, however, that brief and inadver Tramunti, 1107, clearly requires 513 F.2d at exposure jurors tent to of defendants single jury to find that overall inherently prejudicial as handcuffs is not so conspiracy alleged in Count One exists and mistrial, require to defendants bear particular that each defendant is a member affirmatively demonstrating the burden of of conspiracy. that Texas, prejudice. of 533 Wright v. State 185, 1976). F.2d 187 Cir. Motions for Mistrial When Defendants The under which defendants conditions Seen Shackled security routine measures were seen were Defendants contend that the trial rather than situations of unusual restraint denying court erred in motions for mistrial during shackling as of defendants tri such when some of them were seen in shackles Theriault, v. 631 F.2d al. See United States by jurors prospective jurors. Because denied, 281, Cir.), 429 cert. 284 prejudice defendants have failed to show 262, (1976). 898, 182 97 50 L.Ed.2d S.Ct. exposure, from such we find their conten showing of actu Defendants have made no tion to be without merit. any prejudice, will we assume from al nor surrounding iso The motion mistrial was made the two first the circumstances Hall, during Dupont v. 555 jury selection after it was called to lated incidents. See 550 Wigmore, to his bias. 3A tending show 15, 1977). (1st Defendants F.2d 17 Cir. rev.); Evidence, (Chadbourn 783 948 at jurors § to of request

failed examination Robinson, U.S.App. 174 v. who defend- to had seen order determine 1076, 227, (D.C.Cir. F.2d 1079 D.C. 530 those whose ants in shackles or to exclude Harvey, v. 1976); United States Wright be affected. See impartiality might (2d 722 187; Texas, United 533 F.2d at v. State of v. 562 F.2d at 1359. Neither Taylor, States is a proof of bias The extent cautionary any made for a request the discretion of the reserved to matter clearly instruction. The trial court judge judgment will be dis trial and the denying in error the motions for mistrial. only where abuse of on turbed review See States that discretion is shown. As to Exclusion of Evidence 147, 163(5th McCann, F.2d Principal Witness denied, cert. 412 U.S. S.Ct. (1973); Tinker v. United L.Ed.2d 154 Gispert sought Miller to Defendants 125, 127, 417 States, U.S.App.D.C. F.2d trial credibility attack Haskew’s at (D.C.Cir.), showing against them be- he was biased L.Ed.2d ad- repelled cause his homosexual they had bias, considering preferred to show evidence they appeal that They complain vances. it judge determine whether must prevented introducing evidence were from and, so, if its whether probative bias bias. demonstrating that prej outweighs the risks of probative value Regarding predilections, sexual Haskew’s Howell attending udice its admission. See permitted to ask on cross- defendants were Co., 483 Insurance v. American Live Stock was a homo- examination whether Haskew 1973); (5th Cir. he made sexual and whether sexual Robinson, 530 F.2d 1080. at Gispert, advances and Miller’s Miller of probative value evidence negative. responses wife. Haskew’s slight. very fered here is The inference permitted testify Miller’s then wife was rests on against Haskew’s defendants bias that Haskew had made advances to Miller sub the belief defendants were indeed that presence repulsed. in her which Miller had jected rejected Haskew’s advances. court, however, testimony refused permitted testify Miller that Mrs. of two who have witnesses would testified advances, rejected her husband had such that engaged Haskew homosexual activi- testimony and her further would have been objection ties. The court also sustained an her probative Haskew’s animus toward made Miller that Has- when Mrs. testified Although rather than defendant Miller. kew had overt sexual advances to made her. suggested he introduce Gispert would Miller’s advised the court her counsel him, advances to none evidence Haskew’s anticipated testimony to the effect she en Evidence that Haskew was introduced. repulsed “Mar- saying had those advances other gaged activity in with homosexual low, me, you you know are not interested support a conclu persons provides little for you Larry,” are interested in would have to ei that he made similar overtures sion further showed Haskew’s bias. American ther defendant. See Howell v. specific of in Extrinsic evidence Co., 483 1357- F.2d at Live Stock Insurance generally stances of witness’ conduct is 58; Nuccio, F.2d 373 testimony not his admissible to contradict denied, Cir.), 87 (2d 171 cert. to on matters collateral the issues (1967). Further L.Ed.2d 623 S.Ct. 18 credibility. case so attack his See Fed against Gispert had bias more Haskew’s McCormick, 608(b); eral Evidence Rules of in his testimo already suggested been own Evidence, (2d 1972). The 47 at 98 ed. bias that telling Antone ny § wherein he recalled however, witness, of a not a collateral him he Gispert get not because would eye examining kept the wit his party gun matter and the at all times carried he saw him. ness is bound his denial acts on “the snake” whenever

551 The court in Partin held it to Gispert complains Defendant also that have been testimony the two witnesses whose was ex to hospital reversible error exclude records marijuana using would told of cluded have showing few months before the Evidence of and cocaine with Haskew. crime which about he testified the witness drug during Haskew’s use the time of the voluntarily himself committed to hos- submits, question, Gispert is rele events in pital auditory hallucinations occa- credibility. vant to Haskew’s See McCor sional identity. confusion his own mick, Evidence, at 45 94. § Partin, however, limited evi- admissible Gispert When asked Haskew on incapacity dence of mental to that which drugs cross-examination whether he used “probatively period to the related time replied, during conspiracy, Haskew “I attempting testify.” about which he was to narcotics, yes.” have used Haskew admit 763. F.2d at Here events about gram ted he took a week cocaine a Noriega testified occurred twelve joints pot.” smoked “some While Has years after his In response treatment. to responses vague kew’s somewhat are as to questions commitment, Noriega about his use, drug the time of his Haskew later he testified that committed having to the night testified used cocaine declaring order of mentally the court him transferring before cocaine to Boni in Mi incompetent, was treated four months July ami in 1975 and at the time he stole and since again his release was never treat- from George cocaine DeFeis in Miami in any type ed for of mental illness. September. judge correctly The trial ob testimony served the witnesses’ on psychiatric Noriega’s Because rec drug Again, would use be redundant. evi ords probatively were not related to questions dentiary are committed to the events in 1976 about which Norie judge, broad discretion of the trial United ga testified, judge the trial no committed McCoy, States v. F.2d refusing abuse of discretion them. 1975), (1976), 46 L.Ed.2d we cannot Testimony Refusal to Witness Strike say that discretion here. was abused Noriega’s Defendants assert that Willie Exclusion of Evidence as to Other questions during refusal to answer cross-ex- Government Witness by invoking his amination Fifth Amend- privilege deprived ment defendants of their argue Defendants the trial court right Sixth refusing erred in Amendment confront wit- to admit into evidence the through psychiatric nesses full records of Government wit cross-examination. ness, erred, Noriega. they contend, Willie court in re- records Norie therefore ga’s hospital, they fusing confinement in a mental Noriega’s testimony to strike direct assert, ability know, reflect on his re subjects regarding which the Fifth accurately member and relate the events privilege Amendment was asserted. he about which testified. Defendants cite Noriega refused answer the fol authority Partin, as United States v. lowing questions on Fifth Amendment 762 (5th which states: grounds: January 1976 confer whether his jury ... should be informed [T]he “primar ence agents with Government affecting of all matters a witness’s credi- ily because of his own personal activities bility aid in their determination of the affairs”; criminal since 1974 he whether just truth. It is that a jury as reasonable had had a source of income other than be informed of a witness’s inca- mental return; employment or had filed a tax pacity proposes at a time about which he falsely under to whether he had ever testify jury as it be testified would for the to oath or so case in he impair- know that he then suffered an testified in a of sight hearing, charged felony; ment was with a he omit- whether [citation was the On “Smokey nicknamed Bear.” ted]. 552 pre argued relevance of the occasion, No the trial court sustained

each directly in issue responses cluded to matters privilege. Defend riega’s assertion of inferences too in the case rests on a chain challenge rulings only those especially ants support defendants’ long tenuous to inquiries. regard perjury to the Con of them defendants that for lack assertion however, suggestion, trary to defendants’ Noriega’s truth of direct could not test the Noriega’s agent admission to a Government no abuse of discre testimony. We detect prior previously to trial that he had com ruling. tion in the trial court’s privilege waive his perjury mitted did not that to invoke the Fifth Amendment as to Closing Argument Prosecutor’s Ballantyne v. matter trial. See challenge a number of al- Defendants States, 657, (5th 665 237 F.2d Cir. closing leged improprieties in the summa- 1956). remarks jury. tions to the The contested legitimately Where a witness has protracted reversal nor dis- merit neither testimony privilege, invoked the his direct cussion. only struck if the defendants’ ina

must be argue the Defendants Govern complete inquiry to their created a bility rebuttal, using phrases such as “the ment’s danger depriv prejudice by “substantial you to about” attorney for Mr. Miller talked ing ability to test the truth of [them] attorney Gispert through his recit and “Mr. testimony.” the witness’s direct Fountain ed,” comment on de improper constitutes States, 624, (5th v. United 384 F.2d 628 testify. The test for fendants’ failure to denied, 1005, Cir.), cert. 390 U.S. been enunciat impermissible comment has 1246, (1968). generally 20 It L.Ed.2d 105 “it can be said by ed this Court as whether only where the witness refuses to answer manifest intention prosecutor’s opposed “direct” as to “collateral” mat upon the accused’s failure was to comment testimony ters that his direct must be ex of such a testify to was ... [or] cised. Id. naturally and jury character that the would necessarily on the take it to be a comment testing hampered Defendants were not testify.” failure of the to Samuels accused Noriega’s testimony by the truth direct States, Cir. v. United response any ques his of these silence in to denied, cert. 393 U.S. S.Ct. apparent objective tions. The of defend (1969). Considering 21 L.Ed.2d 566 inquiries undermining of No ants’ phrases occurred dur that the use of these riega’s credibility. Noriega’s of credi lack response particular ing rebuttal and in bility clearly the dominant theme of his closing by defense coun arguments made in Noriega cross-examination. Because ad sel, plausible that the equally it is at least having past during mitted to lied in the to address those ar Government intended veracity, extended cross-examination on his guments emphasize that de rather than thoroughly coop cross-examined on his fendants, by failing testify, were heard agents, eration with law enforcement attorneys. only through their See United testified on cross-examination that at the Rochan, 563 F.2d States police approached time the first him he was jury would Furthermore charged robbery with armed and at reasonably phrases the use of such construe tried on a time of trial was scheduled be argu directing specific as their attention charge, responses state arson elicited closing. attorneys ments made defense have been questions defendants’ would Finally note that the court instructed we credibility. mere evidence of cumulative subsequently that no inference jury Newman, 490 F.2d See election may drawn from a defendant’s be 1974); (3d Cardil United States v. testify. not to lo, Cir.), (2d reject suggestion We also L.Ed.2d unfairly accentuat- silence was defendants’

553 121, (1975) (“con artist”); 91 46 L.Ed.2d closing comments of counsel for by ed Stone, Beto, 1018, (5th 1020 only defendant who Walker v. 437 F.2d codefendant 1971) criminal”). (“professional trial. While adverse references The testified at Cir. silence counsel for a of a murder and murder to an accused’s characterization regarded have been testifying attempts perpetrated by booby codefendant ambush and error, DeLuna v. United traps “cowardly” as reversible as is neither unfounded States, 140, (5th 308 F.2d Cir. unfairly prejudicial. nor willing mere favorable observation on the

ness of one of several codefendants to testi FRANK DIECIDUE fy has not. United v. Wash See States was convicted all four Frank Diecidue on (5th Cir.), ington, 550 F.2d cert. charged: counts under which he denied, counts, racketeering one conspiracy and (1977); Hodges, L.Ed.2d 92 United v. States firearms, concerning and one count count (5th 1974). 502 F.2d Cir. Defend concerning the destruction of an automo- made no attorney ant Stone’s reference to terms bile. He was sentenced concurrent merely the silence of other defendants but twenty years on the first two counts and story observed that had told his un Stone twenty years consecutive terms of ten and oath, subject der to cross-examination and on the other two counts. scrutiny jury. before the of the argue

Finally they defendants were un- relevant adopting addition to all fairly characterized as cowards in the arguments other defendants in this of the argument. rebuttal The case, Government’s argues the trial court Diecidue oper- Government remarked that the modus admitting against hearsay him evi erred in conspirators get of the was to someone alleged coconspirators andi dence of when there dirty else to do their work and thus “cover that he was insufficient evidence show themselves” and that the cowardice of the conspiracy. was a member of the A review conspirators was demonstrated the sur- validity establishes the of this of the record reptitious nature of their crimes. argument. hearsay Without evidence there is insufficient evidence to establish in these We do find remarks that defendant beyond a reasonable doubt “type of shorthand characterization of conspiracy charged guilty of either the accused, evidence, not based [which] he member in the indictment or that was a in the especially likely to stick minds of enterprise charged. Thus his convic jury and influence its deliberations.” reversed. tions on these two counts must be States, Hall v. 419 F.2d United evidence admission of inadmissible 1969) (prosecutor referred defendant other two tainted his conviction on the “hoodlum”). as Moreover the characteriza they counts so that must be reversed specific tion of “coward” does not have the for a new In view the case remanded trial. legal description “fugi of a connotation like case, disposition of this it is unneces being no tive” and carries risk of miscon major sary to rule on Diecidue’s second legal as a conclusion. strued See argument, the district court erred Goodwin, States denying his motion for severance. prosecu Here the thrust of the secrecy clearly linked only tor’s remarks was the with which evidence which enterprise specific activities the criminal affairs of the defendant Diecidue with presented in the testi- conducted and the concomitant lack of di of the witness, chief any mony rect evidence of defendant’s association of the Government’s Haskew testified that he enterprise. Unflattering with the charac Marlow Haskew. following dialogue with co- engaged are not reversible terizations of defendants route to Yeehaw supported by conspirator Gispert error when the evidence. en Windom, picked up dynamite to they 994 Junction where (5th Cir.), bombing: 96 S.Ct. be used in a car following again They planned to meet the any qualms I had about He asked me if business, Dixie car, place of day him at Diecidue’s on a and I told placing bomb Diecidue, time fear- said, At that Amusement. . And I that I never had. . . bugged, Norie- his asked care, know, long ful that office you I as as “Well don’t Noriega go to step to out back and asked ga know going get paid. you Do we’re to five try out bundles of with someone to And dealing we’re with . .? who . stumps tree dynamite of on said, sticks said, doing He “We’re he “Yes.” re- days Noriega country. Several later for Diecidue.” Frank where Diecidue turned to Dixie Amusement having had the Haskew also testified take someone else to told him he had found following coconspirator conversation with not be that his services would care of day: following Antone the needed. Gispert him I told what argues significance The Government the me way said to on Junc- the Yeehaw ad- light in evidence meetings of these of tion, said, “yes.” “Don’t says, he He dyna- to show that two months later duced worry money.” “I says, about the He up Manuel blow the car of mite was used to know Diecidue well.” competi- who had become Diecidue’s Garcia Although this revised the condi Court some- vending machine business tor in coconspirator hearsay tions for admission April. stump tree Diecidue had time in The decision, its recent in en banc mind, argues, was in the Government James, (5th Cir.), cert. de 590 F.2d leg of fact the artificial Garcia. - nied, -, having Noriega testified to seen also L.Ed.2d 283 (1979), applies only James conversing Gispert Diecidue defendant commencing statements introduced in trials Castaways Lounge in June party at the at thirty days after of that from the date Gispert that were suspicious response no more a than calls he August made to Diecidue in and would have denying been involvement to a September 1975. In the first Haskew said: complete stranger purported who to have Well, drunk, you you got little us all in him under constant observation. Nor bombings, hot water behind these but penalized should Diecidue be failing for to right. going that’s all You’re get to defend Noriega. his innocence to Willie yours. watching you long, We’ve been so that dog little white out We your behind conclude that whatever misdeeds the house loves us more than you. against may he does evidence Diecidue suggest, it fails to participation establish Diecidue’s in in responded highly Diecidue excited man- conspiracy. “Leaving hearsay testi talking ner “Who is this way my mony out of destroys consideration the case phone?” cursing, and started whereupon in Taking fact. it into consideration de hung up. Haskew In the second call Has- stroys States, it in law.” Panci v. United kew simply watching,” said “we’re still to responded which Diecidue in a manner con- threat, strued Haskew as a “I you told BONI, FRANK JR. my phone don’t call on that way. I’ll meet The you anywhere. You evidence showed that there name the time and was a place.” began conspiracy Miller, Diecidue criminal cursing among Gispert, and Has- hung up. kew Haskew Antone called Diecidue a and others in connection with the time, third leaving message enterprises for him criminal prohibitions at of RICO. Dixie Amusement that “we’re The only against charged still watch- count Boni him ing him.” The argues being Government that with part conspiracy, of that for deny Diecidue’s failure to involvement in which he was twenty years sentenced to response to accusatory imprisonment. Haskew’s remarks only against evidence indicates his complicity. him consisted of supplying dynamite his to certain pur- members of the and Finally, Noriega told shortly Diecidue be- chasing cocaine from another member. fore his indictment that going Diecidue was jail to bombings on these and there was a The Government’s brief recites the facts lot of talk in town. got upset, Diecidue told against early Boni. In appellant June 1975 Noriega it was none of his business and left. Boni told Nathan Brooks Wood that he was again signifi- Government attributes purchasing explosives interested in from cance to his failure deny to involvement. later, days Wood for Boni Several $500. telephone “peo- Wood and advised that his against Diecidue,

The Government’s case ple ready” (a were for the “merchandise” absent the statements of Antone and Gis- term Boni pert, dyna- and Wood used to mean supposition is built of on a foundation being mite for fear their of inference. conversations were slightest There is not monitored). Accordingly, evidence to Wood met Boni connect Diecidue’s interest Miami, dynamite at a April dynamite shop gave with the coffee where Boni used get him Rodriguez bombings Garcia and or and advised that he would $500 perpetrators with the touch with days of those acts. Wood within the next few Norie- ga testified if he dynamite. he had no idea what Diecidue needed more In order to Gispert discussing and effect dynamite, at the June the transfer of Boni told party, conspiratorial participation toWood follow him a few blocks “to make clearly not evidenced mere association [they] sure weren’t followed.” When the conspiracy’s with a dynamite (packaged plastic members. No evidence containers in- suggested Rodriguez competitor suitcase) was a side a in the trunk placed had been Diecidue, enemy Rodriguez car, testi- of Boni’s Wood handed Boni the blast- attempted fied that Diecidue had never ing caps attempted explain how to asserts, purchase his the Government Boni said that was dynamite. detonate people unnecessary “the he from because amount cocaine substantial handle taking it to knew how to it.” beyond a reasonable enterprise established ongo- knowledge of the Boni had doubt that June Boni During the last week of operation ing, diverse nature plaza at a service Gispert met and Haskew participate in the affairs agreed highway Tampa. Miami he on the between enterprise. time Boni transferred to them a At dy- plastic filled with containers of suitcase argument seems The Government’s blasting caps. Gispert and the told namite of a unique characteristics overlook the $1,250 paid dyna- Haskew he Boni little doubt enterprise. There can be RICO mite. guilty showed Boni to be that the evidence Gispert When Haskew returned to and may crimes. The evidence of substantive Tampa, expressed disappointment Antone conspiracy to commit guilt even his of show they plastic explo- that not obtained he has certain substantive crimes. Whether sives which were “easier to handle.” Sever- charged crimes is been or will be with those days dynamite al after was used to the can scope of this record and not within the car, Manuel Boni contacted bomb Garcia’s ap- of to the on be no concern Court “people told his Wood and him that guilty he is peal. question whether The Boni pleased well with the merchandise.” charged. of the crime in obtaining said that he interested “stronger some ... or some stuff Government has contended type plastic explosive of that would be easi- charged the a we have held that indictment agreed er to handle.” to check into Wood enterprise conspiracy to conduct criminal possibility, subsequently reported the to but 1961(4) through in as defined 18 U.S.C.A. § security Boni that increased the “they’d which, racketeering activity pattern of place around the wasn’t able to [Wood] turn, require acts to two or more is defined get concerning it.” Boni Wood contacted 1961(5). racketeering. of 18 U.S.C.A. § subsequent explosives on at least six occa- dynamite the is not such The transfer of sions, procure but never able Wood was to act. statutorily defined Contract murders July Gispert more. In told Haskew Deal would be. of cocaine would be. Sale thought get dynamite he for that he could ing purchase would Boni’s narcotics be. junk Rodriguez bombing yard the from a would not enterprisers from the cocaine (defendant Davis) dealer because Boni was to conduct the agreement be with them any more. supply unable go it his enterprise, although would July 1975 deliv- Gispert Haskew knowledge enterprise’s as to the activities. to Boni ered six ounces cocaine upon There which to find is no evidence Gispert had from obtained Acosta. were en enterprisers that Boni knew the money from that transaction was divided murders, pur gaged proven in contract among Antone Has- equally Gispert, dealing in pose enterprise, or that of the kew, enterprise. the the core members of drugs activity. part enterprise was a of that The Government contends that this evi- any It is Boni had not even contended that dence was sufficient to warrant the infer- robberies, dis knowledge about the armed dynamite the supplied ence that Boni currency, or stolen tribution of counterfeit on enterprise one occasion unsuccessful- Without that Boni Treasury bills. evidence attempted explosives anoth- ly to obtain on re something about knew his codefendants’ argues er. It that the secretive manner enterprise, lated which made the activities material possession which Boni took conspiring he could not be convicted of “strong- Wood to obtain from and his desire racketeering as engage pattern in a justify er stuff” the inference that he knew by the statute. His conviction defined Gispert purpose for which and Haskew involvement, charged must be reversed. dynamite. That the crime wanted addition, HOMER REX DAVIS Government has failed to show knowledge part Appel- on the Homer Rex Davis was convicted on two dynamite lant that the would be used for counts: the main and one count a destructive Appellant device or that the involving count a destructive device. He requisite formed the willful intent as set was sentenced to consecutive terms of ten V, forth in especially light Count years years on the first count and five possession count. fact second mere of the sub- alone, dynamite, standing stance would The Government concedes the evi conviction, not be sufficient to warrant dence of defendant Davis’ involvement being dynamite the reason is but one enterprise the affairs of the is insufficient component of a destructive device. to sustain his conviction of conspiracy. Even if the evidence showed that Davis Davis correctly points out that mere supplied dynamite used in the Rodri dynamite transfer of would not constitute a guez permitted car bomb and the inference 5861(b), violation of 26 U.S.C.A. and that § use, that Davis was aware of its intended it charged act has not been in the indictment. fails agreement by to show partici Davis to charged Rather Davis has been aiding pate in enterprise the affairs of the through abetting possession the transfer or two or racketeering more activities. See dynamite, blasting caps, battery and Elliott, United States v. 571 F.2d at 903. Clearly electrical switch. actually he han- is, Davis’ conviction on Count One there only dynamite. dled the fore, reversed. A conviction aiding based on and

Aiding Abetting Possession of abetting requires commission of a crime Destructive Device evidence that the defendant “was associat Davis challenges also his conviction on venture, ed with the participated criminal aiding abetting Count Five for pos- the something it as in bring he wished to device, session of a destructive the Rodri- about, sought by his action to make it guez bomb. Martinez, succeed.” United States v. 1269, 1272(5th 1977). Cir. The defend

The Government concession and our participated ant need not have agreement every that Davis was not shown to be phase a of the criminal venture. member of the automatically require Hathaway, (1st States v. a reversal and new trial 534 F.2d for Davis Cir.), as to Count Five. unnecessary 50 L.Ed.2d 79 It is Radney, Both Haskew and Gene Tampa he have knowledge particular bondsman, permitted bail give tes- by principals means the the crime

timony hearsay about statements of alleged carry would out the criminal activity. coconspirator Gispert prejudi- which were Austin, 1271, 1277 United States v. cial to Davis and not admissible without a 1978). Cir. showing Gispert and Davis were cocon- spirators. Davis, In jury order to convict would have to argues dynamite conclude that the

Davis that the other handled evidence was was, fact, support insufficient Davis that which was guilty verdict used granted that he should be acquittal, rather destructive device described Count Five, than a new trial. His dynamite contention is as fol- that Davis knew the was to lows: be used in a destructive device and that he dynamite delivered the the intent that Government failed to show knowl-

edge such should be its use. knowledge part or inferred on the Cf. United States v. Malone, 1977); Appellant the of his isolated transaction F.2d 1182 Unit (2d in supplying twenty (20) dyna- Posnjak, sticks ed 457 F.2d 1110 GISPERT, mite to under Count 1. Davis, totaling

Francis Booth testified secutive years who sentences some 65 had assisted him on occasion in his well years’ special parole. and three business, drilling telephoned him in late Although given we have Antone the ad- July 1975 and asked him for a case of vantage of review as to his convictions on dynamite. Booth called Davis back and argued by all issues other defendants that dynamite said he would have on Monday. trial, might taint his we discuss here the Monday telephoned On he Mrs. Davis who major argument Antone makes: evidence said she had taken Davis to airport illegal obtained search and seizure twenty arrived fifteen or minutes later to improperly admitted and his convic- pick up dynamite herself. Booth tions should be reversed. given claimed to have thirty forty her challenges separate Antone three sticks. After Rodriguez’ car was bombed his searches conducted at residence. The 31, 1975, July on Booth went to see Davis place February searches took 1976 at and asked what he had done with dyna- pursuant the time of the arrest of Antone mite, he, Booth, saying was in trouble over charging to a Florida arrest warrant him it. Davis given “big, said he had it to some Cloud, with the murder of Richard on Feb- greasy-looking guy,” and when Booth said ruary pursuant to a Florida search he given would have to tell who he had warrant, pursuant and on March to, dynamite replied, Davis “Do what you a federal search warrant. Prior to trial have to do.” suppress defendant moved to the evidence witnesses, Two defense Wade Lovelace seized in all three searches. After an ex- Mann, and Darrell presented carefully hearing, tensive the district court denied documented alibi showing defense Davis the motion. We affirm. had left town on day Booth delivered dynamite day returned the after February 1976 Search bombing. We conclude that two address books speculate We need not now on 25, 1976, February seized on were admissi- what the evidence at a might new trial “plain theory, ble under the view” were not enough show. It is to hold that the evi by seizures, that, tainted illegal other in dence hearsay without the has sufficient event, any their admission was harmless substance support an inference that Da beyond a reasonable doubt. vis dynamite knew the was to be used in a destructive device transferred violation Antone’s was by arrest executed a team law, and that Davis is not entitled to agents. of seven officers and Three offi- acquittal an appeal. on this This decision placed cers Antone under arrest at makes unnecessary the consideration of the front door deployed while the others were points Davis, other two by error asserted strategic at spots premises. around the is, that testimony about Davis’ arrest for an Upon arrest, Antone was handcuffed and unrelated crime prosecutor’s and the com patted weapons. down for He was then ment on testify. Mrs. Davis’ failure to living seated on a couch room which weapons first searched for and/or evi-

ANTHONY ANTONE arrest, dence. Within two minutes of the Anthony charged Sergeant Antone was in eleven Tampa Fairbanks of the Police of the twelve counts of the Department indictment and entered the room from the rear charged. convicted as He was convicted of of the house where he had been stationed. the conspiracy racketeering charges, guarded Fairbanks Antone while other offi- counts, four firearm two automobile de- swept through cers the house. Fairbanks counts, struction one count each involv- observed two address books on an end table ing justice, cocaine, right. obstruction of and a to Antone’s Aware of the existence counterfeit Federal conspirators, recognized Reserve note. He was of other Fairbanks given a significance combination concurrent and con- of the address books and nied, 1100, 429 U.S. 97 S.Ct. opened Seeing they them. that were in- relevant, (1977). discovery of them. His possession deed he took L.Ed.2d 549 during they the ten min- inadvertent and place This seizure took address books was period plain that Antone was held at his view on a coffee table lying ute were police to the being transported home before reach of Antone. within well, during period, as station. It was this Robinson, Relying on States v. engaged sweep another officer that F.2d 885-86 Antone photographs and tele- of the house seized “plain apply that view” does not contends lying a desk in the phone toll records it not until Fairbanks had because adjacent living room. dining area through they them he decided leafed that argues the address that Government incriminating pos- and took them into products should be as of a books admitted In this Court held inad- session. Robinson a valid arrest. This search incidental Treasury checks missible stolen contained exception to the Amendment war Fourth plain bag grounds brown on the that such requirement carefully rant has been delim object particularly be said to be cannot Supreme ited Court Chimel v. activity, especially indicative of criminal California, original stop unjustified where the (1969), permit L.Ed.2d 685 a search of the upon vague based hunch. The facts dif- person and the area within his or her imme knew fer in this case. Fairbanks that weapons diate control for or evidence which investigation implicated oth- prearrest subject might apply be to destruction. recognized ers and the address books Chimel, ing has looked to the Court might significance be of before he leafed circumstances the arrest particular in through them. whether a seizure was order to determine argues Antone also the address Jones, reasonable. United States they have books are inadmissible because (5th Cir.), 727-28 illegal been tainted other seizures toll 38 L.Ed.2d photographs during the call records and Here, although books were the address same search. The trial court did not rule reach, Antone was within Antone’s hand- of the tele- legality on the of the seizure cuffed and the record does not indicate photographs because phone toll records and any possibility there was that he could represented they the Government reach them. The address books cannot rea- trial, thereby render- not be used at would sonably be said to have been in Antone’s ing the issue moot. See United States control. If Ragsdale, improper, no taint would their' seizure was The seizure of the address books books. have affected address however, justified, plain on the view doc doctrine, trine. this evidence is ad Under The seizure of the address books was by missible which is seized an officer who entirely separate from the other seizures justification being independent has an by officer. and was conducted a different present unconnected with a search directed photographs did The seizure of records and against inadvertently the accused and who books, to the seizure of the address not lead object obviously comes which is across only they is that oc and their connection Coolidge Hampshire, evidence. v. New 403 curred in the course of the same search. 443, 465-66, 2022, 91 29 L.Ed.2d U.S. S.Ct. introducing “specific Defendant’s burden States, (1971); 390 564 Harris v. United demonstrating by is not met evidence taint” 234, 992, 88 19 L.Ed.2d 1067 U.S. S.Ct. v. United showing. Alderman such (1968). 961, 165, 183, 22 States, 89 S.Ct. Pike, (1969); 176 United States v. L.Ed.2d Sergeant guarding was Antone Fairbanks 1975), 734, (5th cert. de 736 Cir. per 523 F.2d during sweep of the house for other 2226, Cravero, nied, 906, 48 426 96 S.Ct. L.Ed.2d sons. v. 545 U.S. See United States 406, (1976). (5th 830 417-18 cert. de- 560 the coun place couch and the where of the address books were

We conclude the currency was hidden to assure that terfeit admitted. properly position to observe the informant was 26, February 1976 Search reported. v. the facts See United States 985, (5th 989 Darensbourg, 520 F.2d was searched Antone’s residence 1975). The affiant had also listened to a to a state search warrant on Feb pursuant Antone between Haskew and conversation 26, 1976, following items and the ruary regarding money the counterfeit cor counter were seized and used in evidence: about its roborated Haskew’s statements bills, papers taken from feit miscellaneous Haskew’s state presence. Furthermore desk, projectile dining room a couch and weapon testfiring the murder ments about it, conditioning pieces of air taken from of his convic possibility would enhance photographs during filters taken and thus complicity tion for the murder items seized course of the search. Other against penal his interest. United Antone were not introduced into evidence. 573, 583, Harris, 91 403 S.Ct. States v. U.S. cause for issuance complains probable 2075, (1971); 723 29 L.Ed.2d lacking, was that the man warrant Barfield, 53, Cir.), (5th cert. v. 507 F.2d 58 ner in which the search conducted was 1684, denied, 950, 44 421 95 S.Ct. U.S. defective, improper and that the seizure (1975). search, L.Ed.2d 105 several items tainted the entire ren dering items inadmissible. The all seized informa The contention that support trial court found that the affidavit well taken. timely tion was not ing the was sufficient and that the warrant light determined in the Timeliness must be properly conducted as to the search of each case. particular circumstances items introduced and moot as to all others. 380, Prout, 526 F.2d States agree. We Cir.), cert. n.5 U.S. (1976); provides 50 L.Ed.2d 109

The Fourth Amendment S.Ct. Cir.), issue, Guinn, upon that “no Warrants shall but cause, by denied, 407 probable supported Oath or affir U.S. S.Ct. mation, (1972). Although the informa particularly describing the L.Ed.2d 685 searched, four place persons regarding projectiles and the tion be old, likelihood things to be the facts tend there is considerable seized.” When months ing provided by was not stale. The probable to show cause are the information informants, relatively pass must a two- floors and of a house are affidavit walls likely and would not be pronged judge permanent test: must be informed fixtures subject period to removal over the of four of some of the circumstances which the of the informa months. informant became aware tion, and facts must be shown which a should Antone contends that the evidence

judge independent can make an determina con- suppressed be because the affidavit Texas, reliability. Aguilar v. tion of misrepresen- tains inaccuracies and serious 1509, 12 L.Ed.2d 723 U.S. Heinrich, Major tations. It states that States, (1964); Spinelli v. United pre- participant in the arrest of Antone 21 L.Ed.2d 637 day, couch in the den. vious had seen a it had been prong. second A Heinrich testified at trial that

At issue here is the Haskew, than the living observed in the room rather coconspirator, had informed the in the affidavit was police presence projectiles of the of three in den. The statement cause test-firing necessary probable of not the walls or floors as a result establish negligent misrepresentation, if there weapon the into a couch and and a Cloud murder currency one, the search. presence of counterfeit a was would invalidate Astroff, panel. reliability of this 578 F.2d secret door The United States v. 1978) (en banc). the state- It Likewise information was well demonstrated. located be- panel ment that the secret was contained sufficient detail as to the location object that the of hind the northeast bedroom door instead of conclusion the search of projectiles the shed was the in the northeast section of the northwest described in the Resnick, warrant. v. United States bedroom door or that the couch was said to 1127, 1133(5th Cir.), F.2d modified on other along be the south wall instead of the north (1972). grounds, 459 F.2d 1390 Since the insignificant. wall is Id. also See plain were in filters and bells view and the Darensbourg, 520 F.2d at 987 n.2. presence legitimate, of the officers the sei suggests Antone that it was more reason- objects zure and admission of these was tape able to conclude that the of the Has- proper. kew-Antone conversation refers to Antone’s persuaded We are not otherwise the possession of narcotics rather than counter- police fact shed the knew the contained air currency complains tape feit that the conditioning testimony filters. was not transcribed or otherwise made affiant, Agent Campbell, the showed that magistrate issuing available to the the war- him Haskew had informed after the war rant. Where the affiant himself had lis- rant had issued that the “stuff” used to conversation, however, tened to the submis- pack a silencer could be found in a shed tape unnecessary. sion the Campbell and that behind Antone’s house agent’s conclusion that the conversation re- significance was unaware of the of this currency lated to counterfeit was a reasona- only information at that time. It was dur facts, ble one. these the district Under ing Campbell the course of the search that properly probable court found that cause apprised that blue fibers similar to for the warrant existed. conditioning those found in air filters had conditioning Antone the air contends that been found on the in the bullet holes screen suppressed filters should have been because door of the murder residence the victim’s the evidence reveals that the officers were Tampa police. circumstances, Under these searching conditioning for doorbells and air expected the fact that the officers to find filters, objects which were not named in the the filters does not make the seizure inval warrant. The issue to be determined here id. This is not a case where the officers properly is whether the district court deter- position into a maneuvered themselves principal purpose mined that the of the whereby they could obtain evidence without officer’s search of the shed the obtaining object a search warrant for the projectiles named in the warrant and not Bolts, their search. it the filters. Because was obvious that the denied, (5th Cir.), cert. projectiles had been fired into the wall and 54 L.Ed.2d 290 U.S. recently the wall had been removed Cushnie, (1977); United States v. reconstructed, adjacent a search of the lumber-strewn shed for wood in which the 42 L.Ed.2d 184 projectile might be embedded was within Antone also contends that fruits of the scope of the search. The warrant itself suppressed this entire search be be- should specified curtilage the house and which in- improperly cause some of the items were cluded the shed. seized. The district court did not reach this suggests testimony Antone issue, nor need we. the Government Since police evidence, officers reveals two or three did not introduce these items into searches of A the shed. careful examina- issue is moot. (cid:127) however, tion of the indicates testimony, March 1976 Search there was search inconsistent one testimony regarding place. when it took challenges validity Antone testimony scope This also shows that the claiming March 1976 search the warrant only search was broadened after was defective because the affidavit was police were unable to find bullet holes in based on the unconstitutional search of testimony, February the wall. Based on this the dis- 1976 and there was a ministe- receipt. inventory rial error clearly trict court was not erroneous its validity response Our determination of the of the Court’s to similar contentions February pretermits Elliott, 26 search 902-05, the first ar United at F.2d gument. The second concerns the admis merits no further discussion. A brief sion of a commode recapitulation brush handle portion into evi of a of the evidence dence. Antone presented contends its admission was against Gispert will allay any error because the item was not sufficiency listed on the doubts as to support its his inventory accompanying conspiracy the return nor on conviction. receipt required by 41(d), as Rule Fed.R. testimony Haskew’s indicates that Gis- Crim.P. This Court has held that defects in pert supplied gauge shotgun the .12 for and

the return of a warrant are ministerial in accompanied Haskew on an unsuccessful nature and do not invalidate a search. expedition Garcia, to find and shoot Manuel Wilson, States v. 214 accompanied trip Haskew in the to Yeehaw denied, cert. 405 U.S. pick up dynamite Junction for the Garcia (1972). L.Ed.2d 490 An bomb, car told they paid Haskew were to be tone’s counsel present during was $20,000 bombing, joined for the Has- seized, search and advised of all items kew in placing on Garcia’s bomb car. the item was during pretrial viewed dis Haskew also Gispert testified that went to covery. showing There has been no prej Miami July with him in 1975 to deliver udice or intentional omission and the evi cocaine to Frank Boni and shared in the dence need not have been suppressed. proceeds from Gispert transaction. Having examined the briefs and record and Haskew decided to fulfill the murder Antone, for error as to we affirm his con- contract on Rodriguez by bombing, Cesar victions on all counts. Gispert helped position the bomb in attempt Rodriguez’ life. MANUEL GISPERT A careful review of the briefs and record Gispert charged Manuel eight reveal support sufficient evidence to Gis- counts of the indictment and acquitted on pert’s conviction on all counts. one. He was found guilty of seven counts: the conspiracy racketeering counts, Denial of Bill of Particulars Motion counts, three firearm and two automobile Gispert appeals Defendant the district destruction counts. He was sentenced to court’s denial of his motion for a bill twenty concurrent terms of years imprison- particulars seeking the time and date in ment on counts, the first two consecutive June 1975 on Gispert which and others al concurrent years sentences of ten on the legedly attempted to murder Manuel Garcia counts, three firearm and consecutive con- and the time July and date in 1975 on which current sentences twenty years on the Garcia allegedly Gispert hired to murder two automobile destruction counts. Rodriguez. Cesar hiring for the mur arguments addition to the common to der Rodriguez alleged as overt act defendants, all Gispert asserts other 14(g) in Count One of the indictment and

grounds for error. attempted murder of Garcia as overt 14(a). act Gispert sought also the time and Sufficiency of Evidence date 2(a)(1) of Count Two of the indict K

Gispert’s major sufficiency argu ment, paragraph recites the same act goes proof ment to the of his connection as 14(a) overt act of Count One. The same with the conspiracy racketeering and the request alleged was made as to receipt his enterprise. argument His reflects the mis possession of a silencer in Eight, Count taken belief that a RICO convic but he acquitted on that count and his tion requires proof that each member was claim is thus moot. United States v. Radet aware of all racketeering activities of each sky, (10th Cir.), 564 n.5 of his cohorts in the enterprise. criminal L.Ed.2d Gispert’s argument is short-circuited note. He received concurrent terms of purpose particu of a bill of imprisonment on the first two is, course, twenty years the defendant of lars to inform years of five counts and consecutive terms charge against him in sufficient detail the imprisonment on the other two counts for a and to mini may prepare that he a defense thirty years imprisonment, total of all sen- v. surprise mize at trial. United States concurrently with a tences to be served Cantu, 557 F.2d imposed state sentence. We af- previously denied, cert. 98 S.Ct. joining In addition to firm his convictions. (1978). The denial of bill L.Ed.2d appellants in asserted errors with the other within the sound discretion particulars rests defendants, argues all Miller common to and can be reversed of the district court points several which we discuss seriatum. that only upon demonstration Court trial actually surprised defendant was at Sufficiency of Evidence prejudice and thus incurred to his substan attack on the suffi rights by tial the denial. United States main Miller’s racketeering conspiracy and Mackey, ciency there argument counts centers on the that that Gispert Defendant makes no claim the was more than one and that at trial due surprised prejudiced he was a unified criminal evidence failed to show sought to his lack of the information enterprise. We have dealt with that con impairment refused. The lack of to his opinion. tention elsewhere in this acquittal by defense indicated his af- knowing participation Miller’s jury Eight. Furthermore we note Count enterprise amply demon- fairs of the insofar as defendant’s claim involves strated. The introduced evi- Government particulars conspir of a bill as to a denial Miller, linking indirectly, dence at least count, acy this Court has found that de every aspect enterprise’s almost af- subjected prejudice fendants are to no showing participation his fairs and direct conspiracy trials where the Government racketeering enterprise’s at least two of the proves overt stated in the indict acts not activities. particulars. ment or a bill of Johnson, (5th Cir.), 575 F.2d 1347 he met with Noriega Willie testified that 59 L.Ed. Gispert April 1975 and Miller and in late general complains Defendant 2d 454 explo- Miller asked him if he could obtain forced ly particulars that denial of the bill of Noriega sives. When asked Miller what and activ him to reconstruct his whereabouts Gispert dynamite, intended to do with the in the two ities for the total time involved going replied Miller “that he was Defendant, allegations, at most two months. with it.” play record, however, nor cites no evidence in the early he Haskew testified that October sought he any, indicating have we found for a .32 asked Miller to obtain ammunition to assert an in which lack alibi defense pistol. supplied Miller the bullets caliber preju have would and dates precise times and he and Haskew then test-fired him. diced equipped with a silencer. weapon which was While did not tell Miller Haskew conclude that defendant Gis We gun and bullets were to be used the abuse of pert has not demonstrated murder, that Miller Haskew testified Cloud necessary for reversible error. discretion that the supplied knew when he the bullets added, silencer, gun and Haskew had a gun person have bullets for a “Why does a LARRY NEIL MILLER going to kill they’re with a silencer unless Miller was convicted of four counts: someone?” racketeering conspiracy and substantive counts, involving Miller, and Gil- one firearm count a silenc- On October 15 Haskew robbery, pro- pistol, er for a .32 automatic and one count ford committed an armed Antone. shared with involving a Federal Reserve ceeds of which were counterfeit 5841(a) mid-November, (b). Miller a ance with U.S.C.A. gave §§ Haskew amphetamines (d) any person which he large quantity subsection reaches While pills gun had stolen in Miami. Miller sold registrable of a which is possession not $4,000-$6,000. paid Haskew eventually Act, registered in accordance with the Unit 522, Stella, (9th 448 F.2d 524 ed v. States Davenport Haskew, through defendant Palmer, 1971); v. Cir. 435 Miami, the source of counterfeit was also 1970), 653, (1st (b) 656 subsection F.2d department money by Miller in a passed proof of the element of requires additional Clearwater, Decem- store in Florida in late the in violation of Act. United a transfer Loocerello, ber a witness 1975. Edward 941, Ponder, 944 522 F.2d States in another unrelated apparently involved denied, 96 Cir.), cert. 423 U.S. violation, money counterfeit testified (1975). 285 46 L.Ed.2d Miller approached him in mid-Decem- ber and if he could coun- asked handle some sufficiency not the Miller does contest of money terfeit of which Miller claimed to possession of the the evidence of his silenc supply. have an unlimited Miller said the exercised dominion and control er. Miller money coming was from Miami and advised at over silencer at least the time he the Loocerello to avoid Clearwater because it possession weapon, the need test-fired meaning was was al- up,” “burnt someone momentary. States v. Par only be ready passing money counterfeit there. (5th Cir.), ker, 1306 cert. testified, finally, January denied, that in

Haskew 98 S.Ct. him a Miller asked to silenced (1978). obtain L.Ed.2d See also weapon. Miller indicated that he and Scar- Richardson, face quiet weapon Rivera needed a to make

a hit on someone who lived in a trailer. 43 L.Ed.2d 659 challenges sup- Miller the to also evidence suggested testimony Haskew’s the port his conviction on that count of the friend silencer was made a of Victor Miller, Antone, Gispert, indictment in which Antone Acosta and that defendant obtained Haskew, charged and Gilford were gave the from it silencer Acosta possession a silencer of 26 of in violation Antone, Haskew, Either or Haskew. both 5861(b) (d), U.S.C.A. silencer §§ unregistered were transferees of the silenc- having been without transferred them for er. The transfers of the silencer use in compliance requirements with the clearly murder were acts in fur- Cloud 5812(a). weapon was the that was § This ongoing therance criminal used in the murder of Richard Cloud. one conspirator and thus the transfer transfer to all. The evidence was Miller contends that he never received “transfer,” support Miller’s conviction on sufficient silencer as defined in 26 5845(j) this count. U.S.C.A. and that a transfer such § a precondition liability is to his under 26 sufficiency does not Miller contest 5861(b). 5845(j) U.S.C.A. defines Section § the evidence to convict him count “selling, assigning, transfer to include involving the Federal Reserve counterfeit pledging, leasing, loaning, giving away, or note. 5812(a) of.” disposing otherwise Section prescribes steps must be a series Admissibility Testimony of “Fifth Hit” taken in to transfer weapon. order Sub- objects Miller to the admission (b) section for Defendant makes it unlawful § ap- Miller testimony by Haskew that one or possess to receive a firearm transfer- January proached seeking him in late statutory red to violation of him in gun silencer to use in provisions. (d) to obtain with a prohibits one Subsection irrelevant, is making a hit. This evidence possessing from receiving firearm argues, no connection has registered Miller because to him National Firearms this “hit” and the Registration between and Transfer Record accord- been established clear, say judge that the We cannot trial prejudicial effect conspiracy. Its admitting this adds, Mil- his discretion in implication that abused Miller from to the testimony in a “fifth hit” as relevant murder. directly involved ler which was cen operation murder contract relevance of asserts the The Government conspiracy. charged tral to the “fifth hit” the so-called this evidence on Septem- testified that theory. Haskew Admissibility Identification of In-Court Acos- him that Victor 1975 Antone told ber five murder contracts offering ta argues Miller Defendant $15,000 named Bernard each. Antone admitting witness Linda trial court erred in Rodriguez, Richard Dempsey, Cesar identification of Miller in-court Marcotte’s other the victims. The as three of Cloud imper objection to the taint of an over his were Government two not named. in an missibly suggestive photo-spread used the was Francis proposes that one of two by made the witness. earlier identification supplied with the Booth. Booth had Davis contention meritless. We find Miller’s Rodriguez bombing on the dynamite used in photo- for assessment of The standard learning explo- July 1975. After procedures provides: graphic identification sion, Davis and said Booth had confronted pretrial photograph identification [A] would tell authorities. he have to the ground only set on that if will be aside that he in a trailer Booth also testified lived photographic procedure the identification In July through from November 1975. impermissibly suggestive as to was so request Miller’s for the Haskew’s account of give very rise to substantial likelihood a had it weapon, silenced Miller stated that irreparable of misidentification. a occupant was to be to shoot the used States, v. United Simmons testify going trailer because he was to 967, 971, L.Ed.2d Although incar- against Miller was them. applied The Simmons standard is as January in 1976 on a state cerated late Court, two-step analysis by a this conviction, February as as 1976 Gilford late Smith, soliciting was still assistance for the murder judge whereby the need deter- said in a trailer. of someone who he lived irreparable mine the likelihood of misidenti- attempts Miller to show the Government only finding photo-spread the fication after knew, fact, in intended Booth was not the impermissibly suggestive. hit” source had “fifth because a confidential “mug were black and white shots” Seven informed the F.B.I. in March 1976 that the Marcotte, department the shown Linda targets remaining four after Cloud’s death accepted clerk who a counterfeit hun- store Garcia, Rodriguez, Dempsey were and a but dollar bill in December 1975. All dred whom, prosecutor, federal none to our Miller, one, which was not contained knowledge, time any lived in trailer at views, profile depicted and all frontal is not in testimony relevant here. This differing facial white males and feature theory ex- conflict the Government’s age general of the same characteristics but cept in the remaining number of murder description. photographs enter- targets. Garcia remained as the time, at a to the witness one unac- shown prise’s target pursuant initial to the out- gesture or which companied by any remark standing supposedly contract issued might her selection. The have influenced Diecidue, targets, only and of Acosta’s five once, through photographs witness went had Cloud been murdered. Furthermore photograph of and at- identified the Miller Gilford, who in participant was an active certainty to the of her selection. tested operation, the contract in a murder stated trial by the conclude that the February 1976 conversation recorded We are unable to in determi- among remaining clearly F.B.I. murder court was erroneous its imper- attorney, photo-spread contracts owner that the were an a bar nation Furthermore, even suggestive. missibly and a man who lived in a trailer. engaged in photographs already enterprise been as to an existent so dissimilar pursuit in it “impermissibly suggestive,” engaged be risk of in racke- activities, teering pursuit at trial or in the of it misidentification was minimal. See Hopper, 1383- conspired engage racketeering Bloodworth activi- ties; or, The witness had been they conspired to whether form department to observe able Miller in the they engage would enterprise in assisting activities; for 15-20 or, store minutes while him racketeering engaged purchase, awith and she showed no hesita- they conduct of which in identifying by photo- tion Miller either or, conspire; majority as conspired to graph in court. count, they formed an seem read enterprise simultaneously formed applicable Miller has adopted also all ar- conspiracy. possi- There are various other guments made by the other defendants speaks as well. Count One cir- bilities appeal. argu- all Having considered are cles. Its deficiencies not trivial because reversal, for ments we affirm Miller’s con- both they affect constitutional and statuto- viction. ry Organized limitations Crime Con- summary, we convictions reverse the Also, trol Count even Act. One does not of Diecidue on Two Counts One and being “plain, come close concise evidence, insufficiency of requiring dismiss- definite statement.” Fed.R.Crim.P. 7. against al these counts him. We reverse Diecidue’s Three convictions on Counts and improper

Four due to of hearsay admission

testimony and remand for a new trial on

those counts. reverse the

We conviction Boni on evidence,

Count One because of insufficient against indictment him must be dismissed. America, UNITED STATES of reverse

We Davis’ on Count Plaintiff-Appellee, conviction evidence, requiring One insufficient dis- missal of that against count him. Davis’ ANTONE, Anthony Larry Gispert, Manuel conviction on Count Five is reversed be- Miller, Diecidue, Neil Frank a/k/a “The hearsay cause testimony improperly ad- Boss,” Boni, Jr., Under Frank and Ho him, against mitted trial a new is or- Davis, Defendants-Appellants. mer Rex dered on that count. No. 78-1614. Antone, Gispert All convictions of Miller are affirmed. Appeals, United States Court of PART,’

AFFIRMED IN AND RE- Fifth Circuit. AND

VERSED REMANDED IN PART. Oct. 1979.

GODBOLD, concurring Circuit Judge,

part dissenting in part: except

I concur I on one would issue.

hold that Count One of the indictment is

insufficient.

I have read up, Count side right One down,

upside sideways, I have dis- it and parsed

sected it. I cannot make

sense of what it says what it or divine to say.

intended It possible is not to tell charges

whether it that defendants were notes 1975. Government opinion. appeal Therefore must defendant’s in the Garcia participants was one of the be considered under the standards set forth bombing. Apollo, States v. 476 F.2d Considering the events of the test was articulated Apollo of Dieci- the next evidence chronologically, Oliva, in United States v. testimony came in due’s involvement 132-33 as car Rodriguez whose was bombed Cesar in- by evidence government, whether the 31,1975. days the bomb- July after Several hearsay declarations dependent of the ing, phoned Rodriguez at one of Diecidue pri- has established co-conspirator, said, “Cesar, this Rodriguez’ lounges and a con- the existence facie case of ma going What hell’s on? Frank Diecidue. participa- the defendant’s spiracy and bombings. these Not I don’t understand other therein, that is whether tion got can Manuel. He’s a lot of you. I see be hearsay would evidence aliunde Rodriguez replied, “I don’t know enemies.” jury finding by the support a sufficient on, you Frank. for going what’s Thank conspir- was himself the defendant calling. I want to it on the don’t discuss ator. call, phone.” phone This the Government attempt “to cover suggests, Diecidue’s argues The Government Diecidue's his tracks.” knowing conspirator as a is demon- role independent strated evidence Noriega August testified witnesses, presented by Willie Norie- anything three he if had had Diecidue asked him Haskew, ga, Rodriguez building and Marlow bombing Cesar of a to do with the having dis- Noriega vending testified to had three ma- had installed which Diecidue April Rodriguez 1975. working cussions with Diecidue late chines and he was if first, Noriega if he In the Diecidue asked construes these or Garcia. The Government if he would Diecidue was dynamite questions knew how to use as evidence that use his own involvement was showing mind someone else how to it. concerned that suspected being and that he was place bombed in coerce him to Dixie Amusement vend- retaliation. ing lounges. machines in his Diecidue’s re- sponses to Haskew’s threatening phone calls Haskew telephone testified to several

Case Details

Case Name: United States v. Frank Diecidue, Larry Neil Miller, Frank Boni, Jr., A/K/A "Mustache Frankie," Manuel Gispert, Anthony Antone, and Homer Rex Davis

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 1, 1979

Citation: 603 F.2d 535

Docket Number: 76-4360

Court Abbreviation: 5th Cir.