On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal Action Nos. 87-00296-03, 87-00296-04.
Sloviter, Hutchinson, Circuit Judges, and Debevoise, District Judge.*fn*
HUTCHINSON, Circuit Judge
Appellants Romaine Phillips and Matthias Brown appeal their convictions for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.A. § 1962(d) (West 1984). They assert the district court erred in several respects. First, appellants contend that the evidence was insufficient to sustain their convictions. Next, they argue that the district court erred in instructing the jury that it could convict the appellants of RICO conspiracy if it found that they had agreed to participate in two or more racketeering acts, including racketeering acts they say were not specifically named in the indictment. Finally, they argue that it abused its discretion in not declaring a mistrial when co-defendant Conrad Cheeks reached a plea agreement with the government after participating in juror selection. We hold that the evidence was sufficient to sustain appellants' convictions for RICO conspiracy. We also hold that the district court did not err in instructing the jury it could convict the appellants on the basis of racketeering acts generally set out in the indictment. Finally, we hold that the district court did not abuse its discretion in failing to declare a mistrial after the government announced its plea agreement with Cheeks. We will therefore affirm.
On August 20, 1987, a federal grand jury returned a six count indictment in the United States District Court for the Eastern District of Pennsylvania. It charged a former Philadelphia Common Pleas Judge, Kenneth S. Harris, along with Conrad Cheeks, Thomas Henshaw and appellants Phillips and Brown with violations of RICO, 18 U.S.C.A. §§ 1962(c), (d) (West 1984) and Hobbs Act extortion, 18 U.S.C.A. § 1951 (West 1984). Count I charged RICO conspiracy against Harris, Cheeks, and appellants Phillips and Brown. Count II charged substantive RICO against Harris, Cheeks and appellant Phillips. Counts III through VI charged only Harris, Cheeks and Henshaw with Hobbs Act extortion. On November 17, 1987, the district court granted a motion to sever the charges against Henshaw.
Jury selection began on January 5, 1988. In the evening of January 6, co-defendant Cheeks and the government reached a plea agreement. The next morning, immediately after the selection of the final three alternate jurors, the government announced in open court that Cheeks had decided to change his plea to guilty on Count I and that the government would move to dismiss the rest of the indictment as to him. Joint Appendix (Jt. App.) at A-352-53, A-354. After the plea agreement was finalized, the district court accepted Cheeks's plea to RICO conspiracy. Id. at A-381. In return, Cheeks agreed to testify against his co-defendants, including appellants Phillips and Brown. Later that afternoon, all remaining defendants moved for a mistrial. Id. at A-184. That motion was denied, but the court did grant a continuance until January 9, 1988. Id. at A-189. The court then swore in the jury and told them that they would "not be considering the case against Conrad Cheeks." Id. at A-348. The court repeated this statement during its charge to the jury. Id. at A-258.
On January 19, 1988, at the conclusion of the government's case, the district court granted appellant Phillips's Federal Rule of Criminal Procedure 29(c) motion for acquittal on the RICO substantive violation in Count II. Id. at A-241. The jury found appellants Phillips and Brown guilty of RICO conspiracy under Count I.
The district court sentenced Phillips to five years incarceration, a $5,000 fine and a $50 special assessment. It sentenced Brown to eight years imprisonment. It denied their post-trial motions for judgments of acquittal under Federal Rule of Criminal Procedure 29(c), arrest of judgment under Federal Rule of Criminal Procedure 34 or a new trial under Federal Rule of Criminal Procedure 33 on March 14, 1988. Brown and Phillips filed timely notices of appeal from their convictions.
We have appellate jurisdiction under 28 U.S.C.A. § 1291 (West Supp. 1988). Our scope of review is plenary over whether the evidence is sufficient to sustain appellants' convictions and over whether the district court erred in its instructions to the jury. We review the district court's decision not to declare a mistrial for abuse of discretion.
This case involves a series of extortions by Harris and others in exchange for "fixing" cases. Harris became a judge of the Court of Common Pleas of Philadelphia in 1984. Conrad Cheeks served as his judicial aide. Brown occupied no formal position in the court system but frequented Harris's judicial chambers and the anteroom adjacent to Harris's courtroom. Brown had known Harris for many years and held himself out as Harris's stepson. Phillips was a former assistant district attorney for the City of Philadelphia and assistant United States attorney for the District of Columbia. He had entered private practice in 1982.
Count I, the conspiracy count on which Phillips and Brown were convicted and from which they take this appeal, charges Harris, Cheeks, and appellants Phillips and Brown with conspiring to violate RICO, 18 U.S.C.A. § 1962(c), by conducting the affairs of the Court of Common Pleas of Philadelphia, an enterprise affecting interstate commerce, through a pattern of racketeering activity. Count I does not allege specific individual acts of racketeering; it simply states that the defendants conspired to commit "multiple" acts of bribery in violation of 18 Pa.Cons.Stat.Ann. § 4701 (Purdon 1983), and extortion in violation of 18 U.S.C.A. § 1951(a). Jt. App. at A-60-61.
Count I also charges fourteen specific instances of case-fixing committed in furtherance of the conspiracy. Four of them involve Phillips and two involve Brown. With ...