*2 MERRITT, Circuit Before ENGEL PECK, Judge. Judges, and Senior PECK, Judge. W. Senior Circuit JOHN Ray Raymond T. Davis and Appellants under Wallace were convicted of Corrupt Influenced and Or- the Racketeer (RICO), 18 1961 et ganizations Act U.S.C. § seq., arising occurring out of activities Mahoning each was a member of the while Davis, Office. County, Ohio Sheriff’s Sher- Mahoning County, iff of from various soliciting accepting bribes and for violations of the Hobbs individuals Wallace, Act, seq. 1951 et 18 U.S.C. § Division, was in the Traffic sergeant exchange bribes in accepting victed of certain favors in relation to his performing their convic- appellants appeal Both duty. tions, improp- arguing that the and that the trial erly joined their cases granting his discretion judge abused trials. Davis requests their jurisdiction bring no contends there was him, and that against a Hobbs Act case evidence adduced at trial was inad- certain separately argues Wallace missable. committed reversible error district him to a Hobbs Act violation sentencing he judgment, a crime for which was not careful consideration of charged. After we affirm the argument presented, each court. district and read in as adduced at trial The facts government to the light most favorable Davis, follows. the elected Sheriff are as threats and ex- Mahoning County, through deputies of his forced a number tortion special to a monthly make “contributions” fund”, Davis in a war chest used “flower After a among thirteen-day jury re- campaigns. Included political receiving several funds against turned verdicts on all counts guilty these Comprehensive Employ- the federal Davis and Each sepa- Wallace. Training (CETA) Act and the ment and appeals rately appealed. Appellants’ have Act (EEA). To Employment Emergency purposes of oral argu- been consolidated for *3 Davis threatened the contributions secure ment and opinion. this loss possible job assign- with of deputies question turn to the of initially employment. from In ments or dismissal properly joined whether the indictment Da- through tactics addition, Davis similar the trial judge vis and Wallace and whether perform to labor at forced several by overruling abused his their discretion Canfield, per- Ohio. Tasks in residence Questions trials. separate motions for of construction of a swim- formed included joinder multiple-defendant in a situation facilities. Wallace and related ming pool 8(b) of the governed by are Rule Federal for providing escorts program a conducted provides: It Rules of Criminal Procedure. vehicles which failed to other trucks and vehicle and size weight state with 8. Joinder of Offenses of De- comply were provided Escorts limitations. fendants. automobiles. On sev- Department
Sheriffs
Wallace escorted vehicles
eral occasions
(b)
Defendants.
Joinder of
Two or
return for
line.
In
these services
the state
charged
be
in
may
more defendants
consisting
bribes
of checks
received
Wallace
if they
same
or information
indictment
escorted.
from those
participated
to have
in the
County
a Mahoning
1979
July
On
or in the
same act or transaction
same
a
indict-
grand
returned
four-count
jury
of
constituting
series
acts or transactions
Davis and Wallace.1 In
naming
ment
an
offenses. Such defendants
offense or
charged
appel-
indictment
each
Count I the
in one or more
may
charged
counts
in violation of RICO
conspiracy
lant with
and all of
separately
or
the de-
Mahoning County
conducting
Sher-
in
charged
fendants
not be
each
need
a
through
pattern of racketeer-
iff’s Office
count.
other counts
the indictment
ing. Three
in the con-
spelled
the actions involved
out
therefore,
key inquiry,
wheth
including acts
Davis in violation
spiracy,
er the
in the indictment arise
counts stated
Act,
seq.
of
18
1951 et
the Hobbs
U.S.C. §
or series of
from the
transaction
acts.
same
appellants
appellants
claimed mis-
were
Before trial both
both
indictment
sought separate trials. With-
with a RICO
their
out comment the
overruled
1962(c).2
conspiracy consisted of
This
§
date.
a trial
motions and set
in an “enter
appellants participating
Mahoning County
Sheriff’s Of
prise,”
trial,
objection
over
of defense
At
fice,
racketeering.
of
through
pattern
a
counsel,
allowed
the court
Louis Jurich
organization
legitimate
a
Courts have held
work He
concerning
performed
had
testify
of
purposes
enterprise
an
may constitute
at
Davis in 1975.
the residence
Turkette, 452 U.S.
RICO. United States
instance work at the Da-
particular
This
69 L.Ed.2d
576, 580-81, 101 S.Ct.
vis
not
included in the acts
home was
Thompson,
(1981);
Davis in the indictment.
charged against
(c)
any person
originally
along
It
shall be unlawful
em-
Several others
indicted
any
including
ployed by
Mar-
and Wallace
Edward
associated
with Davis
tin,
Masi, Sr.,
affect,
in,
engaged
and Louie
Each
of which
John
DePaul.
activities
or the
commerce,
guilty
prosecu-
subsequently pled
foreign
and became
to conduct or
interstate or
directly
indirectly,
trial. The
participate,
witnesses
tion
con-
encompass
Davis and Wal-
enterprise’s
through
modified to
affairs
a
duct of such
activity
lace.
or collection
of unlawful debt.
1962(c) provides:
2. 18 U.S.C. §
14 of the
Cir.) (en banc), cert.
Under Rule
Federal
994-95
-
ques
Rules
Procedure the basic
-,
of Criminal
103 S.Ct.
U.S.
prejudice
tion is whether substantial
(1982) (use
governor’s
of state
L.Ed.2d 635
joint
occur to an individual defendant tried
“enterprise”
purposes
office as the
ly
interpreting
with another. Courts
this
though
preferred
permissible
of RICO
placed
heavy
standard have
burden
a
upon
effect
potential
due to its
adverse
strong showing
requiring
defendant
relations). We therefore hold
federal-state
instance,
burden
prejudice.
For
Mahoning County
Sheriff’s Office
support
met in
assertions as to
must be
“enterprise”
an
under RICO in this
stituted
inability
confusion or
jury
case.
against each
produced
individual
1961(5)
“pattern
Under §
States,
v. United
Opper
defendant.
consist of at least two
racketeering” must
84, 94,
158, 165,
L.Ed. 101
*4
require
In this case that
predicate acts.
Bright,
v.
630
(1954); United States
F.2d
running
Davis
by
ment is met
the actions of
804,
(5th Cir.1980);
812
v.
States
escort
illegal
fund and
the
by
flower
Mardian,
973,
(D.C.Cir.1976)
546 F.2d
977
that a
by
service conducted Wallace. Given
(en banc).
potential prejudice
The
shown is
existed,
clear
it is
pattern
racketeering
of
against
competing
balanced
the
societal
this
parties
the
of both
advanced
conduct
goals of
speedy
Opper,
efficient and
trials.
In such a
through their actions.
pattern
Mardian, supra.
supra; Bright, supra;
We
have
setting
permitted
courts
Davis nor Wallace
think neither
comes close
racketeering with a
pattern
the
of
equating
requisite showing
the
for sever
meeting
acts.” United
or series of
“transaction
jury
easily separate
ance. The
could
the
Thompson, supra; United States
States v.
There
concerning
evidence
each defendant.
1017, 1036-37 (6th
Sutton,
1001,
642 F.2d
nothing
jury
v.
in the record to indicate the
is
denied, 453
Cir.1980) (en banc), cert.
U.S.
any way
by
was in
confused or misled
the
3144,
(1981).
Further,
912,
disagree denied, 698, (6th 431 Cir.), in connection with the 702 cert. no error U.S. ther find 939, 2652, (1977). 97 L.Ed.2d 257 If instructions. S.Ct. 53 jury proponent seeking admission evidence proscribes Act threats Hobbs The ground for specifies an enumerated admis obstruct, delay, or af which and extortions sion, the must determine judge wheth have commerce. Courts fect interstate particu er the is relevant to that “affect” meaning construed broadly claimed, it lar issue and whether under the Consti permissible extent showings satisfy requisite Rule 403 clause. v. Unit commerce Stirone tution’s of the Federal Rules of Evidence. Our role 270, 4 States, ed 361 U.S. appeal is to whether the dis determine has (1960). Sixth Circuit L.Ed.2d judge trict abused his discretion admit test minimis in which the de adopted Czarnecki, ting proffered evidence. su upon interstate commerce impact minimal pra. We think the district did not necessary is to invoke act. United abuse his discretion when he admitted Ju Richardson, 596 F.2d States v. like testimony rich’s to show Davis’s intent v. Harding, 563 Cir.1979); United States deputies. Though to extort labor from his (6th Cir.), cert. present always the chance of prejudice 98 S.Ct. L.Ed.2d 404(b) situation, judge greatly the district executive director of a state (1977) (where by giving jury reduced this problem assisted li illegally commission real estate *5 limiting informing them use instruction to examination, estate in real passing censee in testimony only determining the of Jurich quotations by estate brokers fact that real Czarnecki, by supra; intent Davis. out of state sufficient effect often advertise (6th Cir.1975). Ring, 513 F.2d Act pur commerce Hobbs interstate impact present poses). requisite Thus the is argument Further we dismiss the record establishes that federal here. The his by appellant Wallace that convictions by several the funds received to clerical should reversed due errors in programs and EEA were from the CETA judgment the judgment. Apparently his fund.” into the Sheriff’s “flower diverted violation as a described Wallace’s Hobbs in were interstate com plainly Such funds Act violation under 1951 rather than a § Further, the the ma merce. facts indicate 1961. The sentenc RICO violation under § in construction work at terials used ing judge trial and presided had was in the Davis were flow of inter residence any in manner plainly influenced state United States v. Richard commerce. Wallace has made no this technical error. showings clearly son, These supra. resulting from this showing injury minor jurisdictional re satisfy to sufficient provisions clerical We think the mistake. quirement. Rules of of Rule of the Federal Criminal hold the judge’s further plainly applicable. Procedure are permis Jurich’s was testimony admission of sum, any In no merit in finding 404(b) of sible within Rule the Federal either in this arguments raised general, Evidence. Rules of case, judgment we of the district affirm the propensity criminal based on other showing in court full. a jury might excluded since con conduct is that vict conduct rather a defendant MERRITT, Judge, dissenting in criminal conduct which he than for the with part. 404(b) charged. specifies, Rule how stands portion from that ever, respectfully is I dissent that if evidence used for other holding that the de- reasons, opinion may majority it be admissible. United joined under Beechum, properly 911-12 fendant Wallace States v. his reverse banc), 8(b). I would Cir.1978) (en cert. Fed.R.Civ.P. separate trial. for a 472 viction and remand L.Ed.2d charged enterprise, involve the same Count I of the indictment here but is in- vio- defendants with substantive RICO in any stead —as other conspiracy —an lations, predicate and with of ac- act “agreement objective.” on an overall bribes from individuals outside the cepting ... were properly tried [The defendants] using in return department Sheriff’s under RICO because the overweight to escort department vehicles agreement evidence established an to oversize loads. Davis was separate- Sheriff offense, commit substantive RICO i.e. charged in II with ly through Counts IV an in agreement participate an enter- (on extorting (kickbacks) and money labor prise through a departmental his em- property) from activity. ployees. majority holds that the exist- brief, In its the Government repeatedly ence of a substantive RICO count argues Wallace and Davis agreed to bring indictment itself to enough conduct the through Sheriff’s office racket- various counts of indictment within activity. eering Yet there was no conspir- “same series of acts transactions” here, acy proof and no that Wal- hence to justify joinder defendant Wal- lace to or agreed participated in any racket- 8(b). lace Rule The rationale seems eering activities other than the escort brib- to be that all the because crimes ery scheme. If deputy Wallace had any predicate racketeering involving acts of with connection Davis’ extortion scheme it (the office) the same enterprise Sheriff’s was as victim. The fact that both the they constitute a “series of acts or transac- escort service and Davis’ extortion were tions” lack despite the of connection be- accomplished through the Sheriff’s office as tween the I agree various acts. do not enterprise an is not sufficient to create a broad interpretation either acts” “series of out of what would other- RICO statute or the provisions of wise be unrelated offenses. 8(b). problem, To further illustrate the suppose prosecutors Several courts have allowed office Sheriff’s as an uses an use a count substantive RICO employee purposes and, of extortion un- one indictment what would otherwise be *6 known to the employee, prisoner uses separate, unjoinable offenses by different and robbery burglary. employee E.g., individuals. United States v. Weis joined be should not in a trial for robbery man, (2d Cir.1980) (inclusion F.2d 1118 burglary though and such a case even aof substantive RICO count in indictment office, enterprise, overall the Sheriff’s is the 8(b) meets requirement joined' offenses Otherwise, government prosecutors same. be the same series acts or transac could the state the enterprise name as and tions). nothing wrong There is trial disparate and unconnected of- joinder where there is a connection between employees throughout fenses of the state. the various acts alleged, evidence that all highlighted The Fifth also the .prob- the defendants were aware of or agreed to using example: lem itself as an scope of the un racketeering activity example, dertaken. For example, Da assuming For that our own vis and Wallace for trial on charge court —the United Court of Ap- States bribing outsiders for the escort service was peals for Fifth Circuit —was clearly proper, since there was (as a series we be the assume n related acts in which both Davis Wal proper analysis), ques- under our we participated. lace But as the Fifth Circuit tion whether an agreement to bribe Sutherland, pointed out in Paso, United States v. court official in El Texas could be discussing 656 F.2d (1981), 1192-3 part same as an unre- conspiracies: RICO agreement judicial lated use office ex- language profit-making purposes earlier illicit in Fort [T]he case] [an Lauderdale, Florida, plains that ties when neither the El conspiracies what these they conspira- is not the mere fact that Paso nor Fort Lauderdale the other of the existence of knew tors
group. Stratton, 649 F.2d Cir.1981). n. 8 that a that absent evidence
I would hold to, partici- implicitly consented
defendant the full in, was connected with
pated undertaken racketeering activities
scope of joinder of enterprise,
in furtherance acts based on substan- predicate
unrelated 8(b). violates
tive RICO count INC.,
ARMCO, Plaintiff-Appellee, CORPORATION, STEEL
REPUBLIC Co., Watson Podiak Merrell
Whitaker & Inc., Associates, Defendants-Appel
&
lants.
No. 82-3070. Appeals, Court of Circuit.
Sixth March 1983.
Argued May
Decided En Banc
Rehearing Rehearing 30,1983.
Denied June