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United States v. Raymond H. Flynn
Citations: 852 F.2d 1045; 1988 U.S. App. LEXIS 10052; 1988 WL 76393Docket: 87-1505
Court: Court of Appeals for the Eighth Circuit; July 27, 1988; Federal Appellate Court
Raymond H. Flynn was indicted on three counts: violating the Racketeer Influenced and Corrupt Organizations Act (RICO) and conspiring to do so (counts I and II), and interstate transportation of an explosive (count III). The indictment alleged that Flynn was involved in a violent organization aiming to control labor unions and retaliate against rival factions. After a jury trial, Flynn was convicted on all counts. On appeal, he challenged the admissibility of certain hearsay evidence, the sufficiency of evidence for conviction, comments made by the Government during closing arguments, and the district court's decision not to suppress evidence from electronic surveillance. The Eighth Circuit affirmed the convictions for RICO violations but reversed the conviction for explosive transportation due to insufficient evidence. The background included Flynn's appointment as business manager of Local 42 of the Laborers' International Union in St. Louis in October 1979. Soon after, he was warned by Paul Leisure about a plot by John Paul Spica, associated with the Italian organized crime faction, to kill him and take over Local 42. In response, Flynn and Anthony Leisure attempted to plant a bomb on Spica's car. They succeeded on November 8, 1979, resulting in Spica's death when the bomb exploded. In the late 1970s, Paul and Anthony Leisure faced challenges in maintaining control of Local 110 following an agreement made by Ray Massaud, the local's business manager, before his death in June 1977. Massaud arranged for his son, John Massaud, to become the business manager but intended for John to be a mere figurehead, while establishing Anthony Leisure as assistant business manager with hiring and firing authority. However, John Massaud hired relatives of organized crime figures, undermining the Leisures' control. In response to their diminishing power and a plan by Mike Trupiano and John Massaud to terminate an employee due to his ethnicity, the Leisures contemplated murder to regain control. They initially considered killing Trupiano but ultimately decided on the assassination of James Michaels, Sr., which would also allow them to remove other family members from Local 110 and consolidate authority under Anthony Leisure, positioning Paul Leisure as the head of the Syrian crime faction in St. Louis. To execute the plan, they created a bomb, which was constructed by associate Fred Prater and stored at a towing company owned by the Leisures. The Leisure group surveilled Michaels, Sr. and ultimately placed the bomb on his vehicle. On September 17, 1980, the bomb detonated while Michaels, Sr. was driving, resulting in his death and the subsequent removal of his relatives from Local 110. Less than a year later, on August 11, 1981, Paul Leisure survived a bombing that resulted in severe injuries, which the Leisure group attributed to retaliation from the Michaels family. The group believed local law enforcement was investigating the Michaels family in connection with the bombing. In the weeks following a bombing, Flynn, along with Anthony Leisure and Joe Broderick, traveled to the Michaels family farm in Fredericktown, Missouri, with the intent to kill those present but found the house empty. They discussed various murder methods, including using dynamite. In a separate incident, Anthony and David Leisure shot John Charles Michaels at The Edge Restaurant in St. Louis, having prepared for the attack by observing the location and setting up a getaway plan. Charles Loewe drove them to the scene, where they opened fire and then fled in a van driven by Broderick. The government found no evidence linking Flynn to this shooting. The Leisure group also targeted Bob Peters, whom they believed to be associated with the Michaels group, formulating a plan for Anthony Leisure to shoot him after work. They abandoned this plan when a potential witness appeared. Additionally, the Leisures suspected George 'Sonny' Faheen of involvement in the bombing of Paul Leisure. They surveilled Faheen to learn his routines and obtained a similar vehicle to practice placing a car bomb. On October 15, 1981, Flynn revealed dynamite he had acquired, which was later placed in David Leisure's car. The following day, they attached a bomb to Faheen's car in the Mansion House garage, which exploded when Faheen started the vehicle, resulting in his death. This incident led to charges of interstate transportation of explosives. Michael Kornhardt was arrested for Faheen's murder, but after being released on bail, the Leisure group feared he might cooperate with authorities and planned to kill him. At Paul Leisure's direction, David Leisure enlisted Robert Carbaugh and Steven Wougaman to murder Kornhardt, which they did on July 31, 1982, under the pretense of a burglary. The government presented no evidence linking Flynn to Kornhardt's murder. In August 1982, Fred Prater was granted immunity and became a government witness. On April 13, 1983, a grand jury indicted Paul, Anthony, and David Leisure, along with Broderick, Ramo, Carbaugh, Loewe, and Wougaman on RICO and other charges. Ramo, Broderick, and Carbaugh later pled guilty. By April 1985, a jury found Paul, David Leisure, and Wougaman guilty on all charges, while Anthony Leisure and Loewe were convicted only on substantive RICO and RICO conspiracy counts. The appellate court affirmed these convictions except for two counts against Wougaman. An indictment against Raymond H. Flynn was filed on July 24, 1986, charging him with three counts: Count I for a RICO violation involving conspiracy and the murders of John Paul Spica, James Anthony Michaels III, and George 'Sonny' Faheen; Count II for conspiracy to violate RICO, detailing six overt acts related to the conspiracy; and Count III for interstate transportation and receipt of dynamite intended for use in the murder of George 'Sonny' Faheen. A federal jury convicted Flynn on all counts, resulting in a concurrent sentence of twenty years for Counts I and II, and forty-five years for Count III. Flynn contested the admission of evidence from electronic surveillance, referencing arguments made in the United States v. Leisure case, where the validity of wiretaps was upheld. The court affirmed the denial of Flynn's motion to suppress this evidence, citing adherence to the prior panel's decision. The RICO statute prohibits individuals associated with an enterprise from engaging in its affairs through a pattern of racketeering activity. An "enterprise" under RICO is defined as any group of individuals associated in fact, even if not a legal entity. To establish a pattern of racketeering activity, at least two acts of racketeering are required. Flynn contends that his motion for judgment of acquittal should have been granted because the evidence was insufficient to support the jury's verdict on the RICO counts. In evaluating this motion, evidence must be viewed favorably for the Government, allowing for all reasonable inferences. Acquittal is warranted only if the evidence does not allow a reasonably minded jury to have a reasonable doubt about any essential crime elements. Flynn argues specifically that the Government failed to demonstrate the existence of an enterprise. For RICO, an enterprise must have three characteristics: a common purpose, continuity of structure and personnel, and a distinct structure from the racketeering pattern. The court cites precedent from United States v. Leisure, which upheld sufficient evidence for an enterprise, agreeing with the findings of that case. The Leisure group aimed to dominate local labor unions and profit from this control, resorting to murder to eliminate opposition. The group's leadership was stable, primarily under Paul Leisure, with Anthony Leisure temporarily filling in during Paul’s recovery from injuries. The core members included Paul, Anthony, David Leisure, John Ramo, Joe Broderick, Fred Prater, and Charles Loewe, all of whom were involved in nearly all criminal acts. The group's structure was distinct from their racketeering activities, characterized by familial and social ties and a systematic effort to control unions, as evidenced by their violent acts, aligning with RICO enterprise definitions. The evidence indicated a cohesive organization beyond sporadic criminal alliances, supporting the jury's conclusion that the Leisure group constituted a RICO enterprise. Flynn contested his involvement, but the indictment clearly outlined the enterprise's criminal purposes, including financial gain and retaliatory violence against rivals. Evidence showed Flynn conspired to maintain power within labor unions, including placing a bomb on an opponent's car and orchestrating retaliatory acts. While he did not partake in certain murder-related discussions, Flynn’s actions demonstrated active participation in the Leisure enterprise, transcending mere involvement in individual crimes. Flynn contends that the evidence does not demonstrate that his actions served to advance his economic interests within the RICO enterprise, which must be oriented towards an economic goal as established in case law. The Leisure enterprise's objective was to dominate St. Louis' labor unions, fulfilling this economic purpose. The court finds sufficient evidence to uphold Flynn's convictions for substantive RICO and RICO conspiracy counts. The Government introduced intercepted conversations and testimonies from associates of Paul Leisure, detailing three predicate acts linked to Flynn: the Spica bombing, a conspiracy to murder Michaels III and others, and the Faheen murder, along with discussions regarding the murder of Michaels, Sr., and plans to target others. Although the indictment did not allege Flynn's involvement in certain retaliatory acts following the bombing of Paul Leisure, Flynn argues against the admissibility of evidence related to those acts, citing hearsay concerns. However, the district judge ruled that the Government provided adequate evidence of a conspiracy to justify the admission of those statements. Flynn challenges the relevance of evidence regarding crimes he did not commit, arguing they do not pertain to any conspiracy of which he is part. The Government presented evidence linking him to retaliatory actions against the Michaels family for the bombing of Paul Leisure, asserting that co-conspirator statements are admissible even if Flynn did not directly engage in those retaliatory acts. Evidence of Flynn's intent for retaliation is supported by his comments and actions indicating a strong desire to address the bombing swiftly, including a trip to find members of the Michaels family to kill. Evidence of retaliation for the Leisure bombing is admissible to establish the enterprise element of RICO counts. To demonstrate a RICO enterprise, the Government must show: (1) a shared purpose among participants, (2) the enterprise operates as a continuing unit, and (3) it has a structure distinct from the racketeering activities. Detailed evidence of the enterprise's workings is required, and the attempts to retaliate for the bombing provide relevant insight into its purpose and structure. In prior cases, such as United States v. Finestone, evidence not directly involving the defendant was admitted to establish a pattern of racketeering activity. Similarly, in United States v. Ellison, the court allowed evidence of a white supremacist group's activities to prove the existence of an enterprise, ruling that the probative value outweighed any prejudicial aspects. Flynn contends that the evidence should be excluded under Fed. R. Evid. 403 due to its prejudicial nature. However, the court found no abuse of discretion in admitting evidence related to acts aimed at retaliating against the Michaels family. Concerns arose regarding the admission of discussions about the potential murders of Mike Trupiano and John Massaud, as well as the murder of Michaels, Sr., since the Government did not connect Flynn to these acts. The RICO statute poses a risk of guilt by association, and while such evidence may relate to the enterprise, it was deemed unnecessary given the substantial evidence already presented. Ultimately, the court concluded that the prejudicial impact of this evidence outweighed its probative value, leading to an error in its admission. The district court's error in admitting certain evidence does not necessitate a new trial, as the jury was clearly instructed that conviction on the substantive RICO count required finding Flynn engaged in at least two of the specified predicate acts. For the conspiracy count, the jury needed to find Flynn conspired to commit at least two of those acts. Given these instructions, there is no reason to believe the jury convicted Flynn based on uncharged crimes. The court also noted that the testimony would have been admissible had Flynn been tried with the other defendants, and the evidence in question was not more inflammatory than the crimes Flynn was involved in. The actual prejudice from the erroneously admitted evidence is insufficient to warrant a new trial. Regarding the co-conspirators' statements, Flynn's argument that they were not made in furtherance of the conspiracy was rejected, as the court interpreted the "in furtherance" requirement broadly, finding that the statements served to rally and motivate the conspirators, regardless of references to past events. Flynn also objected to two lines from the Government's closing argument. First, the Government countered Flynn's claim about the limited number of his voice recordings by asserting that the frequency of recorded voices does not dictate guilt. Second, the Government described witness Donna Lansing's demeanor during testimony, which Flynn contested. Despite these objections, the trial court has broad discretion over closing arguments, and absent evidence of abuse of that discretion, the appellate court will not reverse the convictions. The review of the prosecutor's statements will be conducted within the context of the entire trial to assess their impact on Flynn's right to a fair trial. The district court did not err in allowing certain statements from the Government during the trial, as these did not undermine Flynn's right to a fair trial. Specific comparisons between Flynn's and Anthony Leisure's voice recordings were supported by evidence; Leisure's voice was recorded only twice. Flynn's claim of prejudice regarding the Government's description of witness Lansing's voice as quivering was dismissed, as the jury could assess her demeanor directly during the trial. The evidence against Flynn on the RICO charges was deemed sufficient. Regarding Count III, which involved the interstate transportation of dynamite under 18 U.S.C. Sec. 844, the court found insufficient evidence to support the jury's verdict. Testimonies indicated that Flynn discussed obtaining dynamite and participated in transferring bags from his car to David Leisure's car, which contained dynamite. However, the prosecution failed to demonstrate that the dynamite had traveled in interstate commerce, leading to the conclusion that while evidence suggested Flynn likely supplied the dynamite, it did not substantiate the charge of interstate transportation. Section 844(d) prohibits the transportation and receipt of explosives in interstate commerce with the knowledge or intent for use to kill, injure, or intimidate individuals. The requirement of an interstate nexus is critical for a violation of this statute. In the reviewed case, the only evidence presented by the Government to establish that dynamite provided by Flynn for a bombing traveled in interstate commerce was the testimony of Broderick, who stated that Flynn obtained the dynamite from "Ski" living across the Mississippi River in Illinois. The Government argued that it could be inferred that Ski transported the explosives from Illinois to Missouri; however, the court found no direct testimony linking Ski to the acquisition of the dynamite outside Missouri. Consequently, the court determined that the Government's proof of interstate transportation was insufficient, leading to a reasonable doubt regarding a critical element of the crime. The court affirmed Flynn's RICO convictions but reversed and vacated his conviction and sentence for the dynamite charge. Judge Wollman concurred in part but dissenting on the interstate transportation issue, asserting that the evidence was adequate for a conviction when viewed favorably towards the Government's case. Carbaugh entered a guilty plea just before the retrial. The reasons for Flynn's departure from Local 42 remain unclear, with the Government suggesting it was related to a pending lawsuit. According to United States v. Bell, the court can conditionally admit hearsay statements and must later determine their admissibility based on whether they were made by a co-conspirator in furtherance of the conspiracy. Flynn did not object to the hearsay statements regarding Lansing's testimony, and since the court found no violation of his right to a fair trial, it did not consider his failure to preserve this issue for appeal. Flynn challenged the evidence on several grounds: discrepancies between Broderick and Ramo regarding the type of bag used, prior inconsistent statements made by them, the presence of three witnesses confirming his alibi, and two witnesses who saw dynamite in Broderick's car prior to the bombing. However, the court did not address these specific contentions due to its ruling on the sufficiency of evidence.