UNITED STATES v. RIDDLE 99 3405 99 3406 99 3439 (2001)

OPINION

Defendants Bernard Altshuler, Jeffrey Riddle, and Lavance Turnage were convicted by a jury of RICO, RICO conspiracy (18 U.S.C. § 1962(c) & (d)), and conducting an illegal gambling business (18 U.S.C. § 1955), and Riddle and Turnage of committing a violent crime in furtherance of racketeering (18 U.S.C. § 1959).   They appeal on several grounds.   They argue that the district court erred when it permitted them to be absent during voir dire, and they attack their RICO and violent crime convictions on the grounds that there was an insufficient connection with interstate commerce.   They also claim that the evidence was insufficient to support certain counts against them and that the district court erred when it allowed the testimony of a witness after the government had concluded a plea bargain with him, when it did not give a conspiracy withdrawal jury instruction, and when it sentenced them without presentence reports.   We affirm the district court.

Because resolution of defendants' issues concerning their voir dire absence and the interstate commerce requirements may have precedential value, those issues will be addressed below.   The remaining issues raised by defendants are addressed in an unpublished appendix to this opinion.

I.

This is a case about three actors in the Lenine Strollo branch of La Cosa Nostra (LCN) in Youngstown, Ohio. Strollo ran several types of gambling in the enterprise, including a numbers lottery and dice games, some of which were played after-hours at several establishments, mainly Sharkey's;  Jeff, Butch, and Jeff's;  and the Greek Coffee House.   These games had operated in Campbell, Ohio, since at least the 1950s, and Strollo became more involved as his political influence in the community grew, until he gained sole control after his release from prison in 1991.

Strollo came to rely on defendant Altshuler and another associate named Lawrence Garono in the gambling enterprise.   Altshuler ran or supervised most dice games and “stag” parties (games to raise money for a particular cause or event) when he was not in prison, and in the mid 1990s when he was released from prison, Altshuler took control of the ailing gambling business, in part because he suggested he would be able to attract African American drug dealers to the tables.   To assist him, Altshuler recruited Riddle and Turnage, who were accepted in the drug dealing community.   Together they converted Sharkey's into a nightclub with a craps game, but the undertaking failed.   They had more success with gambling at the restaurant called Jeff, Butch, and Jeff's.

While Strollo built his business, Ernie Biondillo, as a self-designated successor to Strollo's murdered rival, began to conduct gaming events.   Strollo felt that he was not getting his fair share, and he decided to kill Biondillo, delegating the task to Garono and then to Altshuler, who gave the job to Riddle.   Riddle in turn involved Turnage.   Riddle, Turnage, and another associate, George Wilkins, surveilled Biondillo and set out one day with guns to kill him;  their efforts came to naught when they could not find Biondillo.   Riddle subsequently decided he should not be present at the shooting and found a substitute;  Turnage, Wilkins, and the substitute met on June 3, 1996, blocked off Biondillo's car, and shot and killed him.

Members of the enterprise had been enjoying a certain amount of protection from the Mahoning County prosecutor, who unexpectedly lost the election in 1996 to a former police officer named Paul Gains.   In light of several pending cases against enterprise members, including a case against Turnage, Strollo's contact with the prosecutor's office stated that the only solution was to kill Gains before he assumed office.   Strollo passed the word on to Altshuler, who replied, “We'll take care of it.”   Riddle enlisted Turnage and Wilkins, and in October 1996, the trio went to find Gains at a restaurant in Youngstown to kill him;  they had to abandon their plan, however, when they found the area full of police.   Turnage gave up on having his case fixed, pleaded guilty to robbery, and went to jail.   Riddle then recruited two other men to kill Gains, but they bungled the attempt, leaving Gains wounded but alive.

On December 10, 1997, the government filed an indictment against Strollo and nineteen of his associates, later replaced by a superseding indictment against thirteen defendants.   The indictment charged Altshuler, Riddle, and Turnage with violations of 18 U.S.C. § 1962(c) and (d) (RICO) and § 1955 (illegal gambling business), and Riddle and Turnage with violation of 18 U.S.C. § 1959 (violent crime in aid of racketeering).

On December 2, 1998, in a pretrial conference, the parties requested the use of a juror questionnaire.   The government asked for an anonymous jury, and Strollo's counsel asked that all potential jurors be questioned individually in the court's chambers.   The court noted that United States Marshals would have to accompany defendants wherever they went, and the Marshals' presence in the court's chambers might prejudice defendants by suggesting to potential jurors that defendants were dangerous.   Counsel responded that it would be in defendants' interest to waive their right to be present in order to preserve the benefit of individual questioning without the potential prejudice of the Marshals' security.   The court agreed and instructed the lawyers to tell the court in writing by January 7, 1999, if the defendants objected to this procedure.   There were no objections, and at a February 11, 1999, meeting, defense counsel discussed the proposed voir dire procedure with their clients, at the court's request, in a holding cell and reported to the court that defendants wished to proceed as agreed.   The court issued a written order confirming the waiver.

The prospective jurors then completed under oath a questionnaire of forty-six pages, developed with the input of defense counsel.   Counsel agreed to strike a total of sixty-six jurors for cause on the basis of the questionnaires, which were available to defendants during the screening process.

On February 23, 1999, the court began individually questioning the remaining jurors in chambers, one by one, with defense counsel present;  the individual voir dire process lasted for three days.   Defendants were present in the courthouse on the morning of February 23, but at the start of the afternoon session on that day, defense counsel indicated to the court that defendants requested permission to return to jail until the final stages of the jury selection process.   The court, after confirming with counsel defendants' waiver of their right to be in the courthouse, granted defendants' request.   On March 1, defendants returned to the courtroom for the exercise of peremptory challenges.   These challenges were exercised in side-bar conferences in the open courtroom, where defendants were present.

During the screening of the jurors, the government had concluded a plea agreement with Strollo that gave him twelve to fifteen years in prison in exchange for his testimony against the others, and dropped a forfeiture charge in the amount of ten million dollars, plus various properties.   The trial began on March 1, 1999, and Strollo fulfilled his bargain by testifying.   On March 12, 1999, Altshuler, Riddle, and Turnage were convicted on all counts and sentenced to life imprisonment.   After the jury verdict, the court did not order a presentence report, stating that it had adequate information already from previous proceedings.   The court offered to sentence the defendants the following week, but defense counsel agreed to do the sentencing that day.   The court gave the counsel time to get the defendants' consent to the sentencing procedure, and counsel made no objections.   Defendants were sentenced to life imprisonment without release, with a five-year sentence for illegal gambling to run concurrently.   Defendants appeal their convictions and sentences.

II.

A. Voir Dire

 Defendants argue that they did not effectively waive their right to be present during voir dire because they did not waive the right in person before the trial court.   Defendants are essentially asserting that a trial court must engage a defendant in an on-the-record colloquy before allowing the defendant to absent himself from voir dire, and that failure to do so is a fundamental structural error.   We decline to so hold.

 A criminal defendant has a constitutional right to be “present at all stages of the trial where his absence might frustrate the fairness of the proceedings[.]”  Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975);  United States v. Gibbs, 182 F.3d 408, 436 (6th Cir.1999).  Federal Rule of Criminal Procedure 43 builds on this right and mandates that “[t]he defendant shall be present ․ at every stage of the trial including the impaneling of the jury and the return of the verdict.”  Fed.R.Crim.P. 43(a).   This right is more extensive than that guaranteed by the Constitution.  Gibbs, 182 F.3d at 436.

 The right to be present may be waived.  Rule 43 allows the court to consider the defendant to have waived the right to be present if the defendant has been initially present and then voluntarily leaves after the trial has commenced, “whether or not the defendant has been informed by the court of the obligation to remain during the trial.”  Fed.R.Crim.P. 43(b).   Defendants attempt to avoid the conclusion that they waived their right when they consented to the use of questionnaires and requested to leave the courthouse during voir dire by saying that waiver by their counsel was not effective as their waiver.   This court has, however, held otherwise.   In United States v. Gallo, 763 F.2d 1504 (6th Cir.1985), we agreed with a district court's determination that a defendant had effectively waived his right to be present when his defense counsel relayed the hospitalized defendant's waiver of presence to the court. Id. at 1529.

 Of course the waiver of this right, as with other constitutional rights, must be knowing and voluntary.  Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege”).   Given the choices presented to the defendants and their strategic option to be absent to avoid prejudice, the voluntariness of their decision is clear.   Moreover, as Rule 43 suggests, the Constitution does not require a colloquy on the record to establish a knowing waiver of the right to be present.   Taylor v. United States, 414 U.S. 17, 19-20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973).   In Taylor, a defendant failed to return for the afternoon session of his trial, which continued in his absence the following day.   The Supreme Court found an effective waiver in his voluntary absence, even though the trial court did not warn him of his rights and the consequences of his absence.   The Supreme Court reasoned that it was “wholly incredible” that the defendant, who had been present at the start of his trial, was unaware of his right to be present.  Id. at 20, 94 S.Ct. 194.   Similarly in United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985), a case involving an in-camera conference with a juror, the Supreme Court found that “respondents' total failure to assert their rights to attend the conference with the juror sufficed to waive their rights under Rule 43.”  Id. at 529, 105 S.Ct. 1482;  see also United States v. Holyfield, 802 F.2d 846, 849 (6th Cir.1986) (affirming a conviction when the judge and counsel conference-called the hospitalized defendant, who conversed with his lawyer and authorized his lawyer and the court to proceed in his absence).

In this case, defense counsel suggested defendants' absence, and the court allowed the waiver only after it instructed defense counsel to consult with their clients and then received assurance from defense counsel that the defendants waived their right to be present.   To hold that such a waiver of a defendant's voir dire presence would be effective only after an on-the-record colloquy with the defendant would create a burdensome and impractical rule.   Indeed, such a rule would effectively stop the proceedings whenever a defendant refused to return to court.   We hold that defendants' waiver through their counsel of their right to be present during voir dire was effective.

 Even if the waiver were not effective, the right to be present at voir dire is not one of those structural rights whose violation constitutes per se error.   Rather, there must be prejudice in the absence to warrant reversal.   See Gibbs, 182 F.3d at 437 (applying harmless error review to the exclusion of defendants from a portion of voir dire and plain error review to defendants' exclusion from peremptory challenges).   Any error in a defendant's voir dire absence is not a “defect affecting the framework within which the trial proceeds,” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), nor is it one of those errors that “necessarily render[s] a trial fundamentally unfair,” Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986);  compare Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (reversal required for the complete denial of trial counsel);  Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (reversal required when a judge has a financial interest in conviction, despite a lack of indication that bias influenced decisions);  Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (discrimination in the grand jury is not subject to harmless error review);  McKaskle v. Wiggins, 465 U.S. 168, 177-78 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of the right to self-representation at trial is not subject to harmless error review);  Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of the right to a public trial is not subject to harmless error analysis).   To create an automatic reversal rule for voir dire absences would be to risk interference with the choices made by counsel and defendant for the defendant's benefit.   Here, for instance, defendants' absence was part of a defense strategy to avoid any prejudice resulting from the appearance of heavy security during the questioning of the potential jurors.   No purpose would be served by a per se rule that eliminated this solution to defendants' dilemma.   Such a rule would also invite “sandbagging” by defendants seeking to win a reversal on issues never presented to the trial court.   We decline to expand the limited list of structural rights whose violation constitutes per se error by adding the defendant's right to presence at voir dire.

B. Interstate Commerce

 Altshuler and Riddle claim that several counts of their conviction should be reversed because the government did not sufficiently establish a link with interstate commerce.   Specifically, they argue that the court lacked subject matter jurisdiction to convict them under 18 U.S.C. § 1962 (RICO) and 18 U.S.C. § 1955 (gambling), and Riddle under 18 U.S.C. § 1959 (violence in furtherance of racketeering) ¹ because the government did not show a substantial effect on interstate commerce.   Defendants raise their interstate commerce argument for the first time on appeal.   The claim may only be reviewed for plain error.   See United States v. Gaydos, 108 F.3d 505, 509 (3d Cir.1997) (reviewing for plain error the claim that the evidence was insufficient to establish a connection to interstate commerce in an explosives case).

 Defendants err in asserting that the interstate commerce argument goes to the court's subject matter jurisdiction.   This court has explained that the interstate commerce requirement, while referred to as a “jurisdictional” element, does not affect subject matter jurisdiction, that is, the court's power to hear a case.   Rather, a claim of an insufficient connection to interstate commerce is a challenge to one of the elements of the government's case and is therefore considered a claim about the sufficiency of the evidence.   See United States v. Degan, 229 F.3d 553, 556 (6th Cir.2000) (explaining that defendant's challenge to an interstate commerce nexus in a conviction under 18 U.S.C. § 1958(a) (murder for hire) had no effect on subject matter jurisdiction but was a claim about the sufficiency of the evidence);  United States v. Martin, 147 F.3d 529, 531-32 (7th Cir.1998) (stating that a challenge to 18 U.S.C. § 844(i)'s interstate commerce element did not affect subject matter jurisdiction).   Defendants' claim is therefore best understood as a facial challenge to the constitutionality of §§ 1959 and 1955 and an as-applied challenge to the sufficiency of the government's evidence in the §§ 1959 and 1962 convictions.

In attacking the statutes, defendants rely on the Supreme Court's opinion in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which invalidated the Gun Free School Zones Act (18 U.S.C. § 922(q) (1994)) because Congress had insufficiently established a connection with interstate commerce.   There, the Supreme Court identified three categories of activities that Congress may regulate under its commerce power:  (1) “the use of the channels of interstate commerce”;  (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”;  and (3) “those activities having a substantial relation to interstate commerce.”  Id. at 558-59, 115 S.Ct. 1624 (citation omitted).   The statute in Lopez fell into the third category, and the Court determined that activities regulated within this category had to “substantially affect” interstate commerce.  Id. at 559, 115 S.Ct. 1624.   The statute at issue did not survive constitutional scrutiny for two reasons:  it was a criminal statute that had nothing to do with commerce, and it lacked a “jurisdictional element which would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce.” Id. at 561, 115 S.Ct. 1624.

1. 18 U.S.C. § 1962 (RICO) (Altshuler and Riddle)

Altshuler and Riddle argue that their RICO convictions under 18 U.S.C. § 1962(c) and (d) were invalid because the government was obliged under Lopez to show a substantial effect on interstate commerce, and it failed to do so, alleging only an intrastate enterprise.  Section 1962(c) states that

[i]t shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

18 U.S.C. § 1962(c).   Subsection (d) makes it a crime to conspire to violate (c).   Because the statute contains a jurisdictional requirement (the enterprise must be engaged in or affect commerce), it is not controlled by Lopez, and, according to the Supreme Court, when a RICO enterprise is “engaged in” interstate commerce, the government does not need to show that the enterprise's effect on commerce is “substantial.”  United States v. Robertson, 514 U.S. 669, 671-72, 115 S.Ct. 1732, 131 L.Ed.2d 714 (1995).   Robertson affirmed a RICO conviction based on the operations of an Alaska gold mine, which used out-of-state workers and sent gold out of Alaska, and thus engaged in interstate commerce.  Id. The Court in Robertson reserved the question of whether a RICO prosecution based on an enterprise that “affects” interstate commerce must show a “substantial” effect.  Id.

Since the Youngstown enterprise here is not “directly engaged in the production, distribution, or acquisition of goods or services in interstate commerce,” id. at 672, 115 S.Ct. 1732, we consider the requirements for an enterprise that affects interstate commerce, rather than one that is engaged in interstate commerce.   The question of a RICO enterprise's necessary relationship to interstate commerce has not been expressly addressed by this court after Robertson and Lopez, but other courts have confirmed that a de minimis connection is still sufficient.   See, e.g., United States v. Juvenile Male, 118 F.3d 1344, 1348 (9th Cir.1997) (“we conclude that all that is required to establish federal jurisdiction in a RICO prosecution is a showing that the individual predicate racketeering acts have a de minimis impact on interstate commerce”);  United States v. Miller, 116 F.3d 641, 674 (2d Cir.1997) (holding that because drug trafficking affects interstate commerce, a RICO claim based on drug trafficking need establish only a de minimis connection between the individual transaction and interstate commerce).

We have found a de minimis connection to interstate commerce to be sufficient under similar statutes after Lopez.   See United States v. Ables, 167 F.3d 1021, 1030 (6th Cir.1999) (applying a de minimis standard to 18 U.S.C. § 1956 (money laundering), which involves financial transactions that “in any way or degree affect[ ] interstate or foreign commerce” or involve “the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree”);  United States v. Wall, 92 F.3d 1444, 1450 n. 13 (noting in dicta that statutes like the carjacking statute, which “require[s] that the government prove that the activities at hand substantially relate to interstate commerce,” call for a “low threshold of proof of interstate relation”);  United States v. Smith, 182 F.3d 452, 456 (6th Cir.1999) (stating a de minimis standard for violations of the Hobbs Act, 18 U.S.C. § 1951, which requires robberies to “affect [ ] commerce”);  but see United States v. Wang, 222 F.3d 234, 239 (6th Cir.2000) (requiring a “substantial” connection in Hobbs Act cases when an individual, rather than a business, is the victim).

 We hold that a de minimis connection suffices for a RICO enterprise that “affects” interstate commerce.   The question then is whether the government has met that burden in this case.   The Ohio-based enterprise here purchased Pennsylvania lottery tickets to protect against losses in the illegal gambling business;  the members sold in Pennsylvania a ring taken from the Youngstown murder victim Biondillo;  the enterprise extorted money from a victim who sold fireworks in New York;  and the government alleged that the Pittsburgh mafia family was involved in the enterprise (although all of those charged were Ohio residents).   Given the low threshold for a de minimis interstate commerce connection, the requirement has been met in this case.   Cf. United States v. Mills, 204 F.3d 669, 672-73 (6th Cir.2000) (finding the de minimis nexus sufficient under the Hobbs Act when there was a “realistic probability” that sheriff's deputies from whom bribes were extorted would turn to an interstate lender recommended by the defendant sheriff in order to pay the bribes).

2. 18 U.S.C. § 1959 (Violent Crimes in Aid of Racketeering) (Riddle)

Riddle claims that 18 U.S.C. § 1959 is directly controlled by Lopez and that his conviction is invalid because the basis for his § 1959 conviction-the murder of Biondillo-had no connection with interstate commerce.   The government counters that § 1959 expressly contains jurisdictional elements, thus distinguishing it from Lopez.

The statute governing violent crimes in aid of racketeering activity states:

Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished [according to the sentences that follow].

18 U.S.C. § 1959(a).   The statute defines “enterprise” as an entity which is “engaged in, or the activities of which affect, interstate or foreign commerce.”  18 U.S.C. § 1959(b)(2).

We agree with the government that the jurisdictional provision in the enterprise definition distinguishes the statute from Lopez, but this court has not yet determined what degree of connection to interstate commerce is required under § 1959.   The courts of appeals for other circuits have applied the de minimis standard for the underlying RICO violation without requiring the violent act to have a connection with interstate commerce.   In United States v. Gray, 137 F.3d 765 (4th Cir.1998), the Court of Appeals for the Fourth Circuit affirmed a § 1959 conviction based on murder in furtherance of a drug conspiracy because it found evidence sufficient to “meet the minimal standard required to satisfy the interstate commerce requirement of § 1959(b)(2)” when the murder victim was a heroin addict who robbed a stash house.  Id. at 773. Because the government presented evidence that heroin is produced from foreign and not local poppies, the interstate commerce requirement was met.  Id. at 772-73.

 The Court of Appeals for the Second Circuit also affirmed a § 1959 conviction for murders without requiring the murders to impact interstate commerce.   Instead, the court required the predicate act (murder) to “bear a strong relationship to racketeering activity that affects interstate commerce[.]”  United States v. Mapp, 170 F.3d 328, 336 (2d Cir.), cert. denied, 528 U.S. 901, 120 S.Ct. 239, 145 L.Ed.2d 200 (1999).   The court found that the murders furthered a racketeering enterprise which was involved in robbing a business “engaged in interstate commerce by selling goods that had been obtained from out of state.”  Id. This connection to interstate commerce sufficed.   We agree with the Courts of Appeals for the Second and the Fourth Circuits that § 1959's requirements are met if the government establishes a connection between the § 1959 act of violence and a RICO enterprise which has a de minimis interstate commerce connection.   The government has done so here;  Riddle does not contest the connection between Biondillo's murder and the Strollo enterprise, and we have determined above that the enterprise sufficiently affected interstate commerce.

3. 18 U.S.C. § 1955 (Illegal Gambling Business) (Altshuler and Riddle)

 This court has examined 18 U.S.C. § 1955 after Lopez and found it to be a valid exercise of congressional Commerce Clause power.  United States v. Wall, 92 F.3d 1444, 1452 (6th Cir.1996). In Wall, we noted that although the gambling statute does not contain a jurisdictional element, it addresses a commercial activity (unlike the Lopez statute).   Furthermore, its legislative history provides congressional findings of illegal gambling's effect on interstate commerce, findings that were lacking in the Gun Free School Zones Act. Id. at 1449-50.   Defendants recognize the futility of their challenge in light of Wall, but urge the court to reconsider Wall;  this we cannot do absent an en banc rehearing.   United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.1996).   Any as-applied challenge is irrelevant since § 1955 does not contain a jurisdictional element and the prosecution need not put on evidence of a particular connection with interstate commerce.   See Ables, 167 F.3d at 1028 (rejecting a § 1955 defendant's premise that a “criminal statute constituting a valid exercise of congressional authority under the Commerce Clause may nevertheless be unconstitutional as applied to a particular defendant when the statute's jurisdictional requirements have been met”).

III.

For the foregoing reasons, the rulings of the district court with respect to defendants' voir dire absence and the interstate commerce elements of 18 U.S.C. §§ 1962, 1955, and 1959 are affirmed.

NOT RECOMMENDED FOR PUBLICATION

Nos. 99-3405, 993406, 99-3439UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUITMay 4, 2001.UNITED STATES of America, Plaintiff-Appellee,v.Jeffrey RIDDLE (99-3405);  Lavance Turnage (99-3406);  Bernard Altshuler (99-3439), Defendants-Appellants.ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIOAPPENDIX TO PUBLISHED OPINION

Before: GUY, NORRIS, and SILER, Circuit Judges.

In this unpublished appendix, we address the remaining issues raised by defendants.   Altshuler and Turnage contest the sufficiency of the evidence to support their convictions under 18 U.S.C. § 1955, and Turnage further claims there was insufficient evidence to support his 18 U.S.C. § 1959 conviction.   Defendants also argue that the district court erred when it allowed the testimony of a witness after the government had concluded a plea bargain with him, when it did not give a conspiracy withdrawal jury instruction, and when it sentenced them without presentence reports.

I.

A. Sufficiency of the Evidence (Altshuler)

Altshuler claims that there was insufficient evidence to establish an element of the gambling business charge, namely, that the business was in “substantially continuous operation for a period in excess of thirty days or [had] a gross revenue of two thousand dollars in any single day.”  18 U.S.C. § 1955(b).   We review a claim that the evidence was insufficient to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Courts have not read 18 U.S.C. § 1955 to require that the gambling business be in operation for thirty consecutive days, but rather that it be “conducted upon a schedule of regularity sufficient to take it out of the causal [sic] nonbusiness category.”  United States v. Trupiano, 11 F.3d 769, 773-74 (8th Cir.1993).   In Trupiano, the Eighth Circuit upheld a gambling conviction when the games were “sort of sporadic.”  Id. at 773;  see also United States v. Pack, No. 92-3872, 1994 WL 19945, at *2 (6th Cir. Jan. 25, 1994) (finding weekly poker games at an individual's house to meet § 1955's requirements).

In the instant case, there was testimony that Garono ran the Greek Coffee House games from 1990 to 1993, and that the games ran continuously after Altshuler's release from prison in 1993.   One witness said he gambled there at lease three times a week.   The game at the Greek Coffee House was said to be “Bernie's [Altshuler's] meal ticket.”   The government put on evidence that the games at Sharkey's ran from early 1993 to June 1993, while the one at Jeff, Butch, and Jeff's ran from at least 1993 to 1996.   The evidence was sufficient to establish regular operation for at least thirty days.

B. Sufficiency of the Evidence (Turnage)

Turnage challenges the sufficiency of the evidence underlying his convictions for 18 U.S.C. §§ 1955 and 1959, but that challenge was defaulted because he did not renew his Rule 29 motion for acquittal after the presentation of defense evidence.   Under United States v. Price, 134 F.3d 340 (6th Cir.1998), if the defendant moves for a judgment of acquittal at the close of the government's case-in-chief, “and defense evidence is thereafter presented but the defendant fails to renew the motion at the close of all the evidence, he waives objection to the denial of his earlier motion, absent a showing of manifest miscarriage of justice.”  Id. at 350 (citations omitted).   Such miscarriage exists “only if the record is devoid of evidence pointing to guilt.”  Id. (citation omitted).

1. 18 U.S.C. § 1955 (Illegal Gambling Business)

Turnage claims that there was insufficient evidence that he personally “conducted, financed, managed, supervised, directed or owned” an illegal gambling business.  18 U.S.C. § 1955(a).   In United States v. Merrell, 701 F.2d 53 (6th Cir.1983), this court affirmed the conviction under the gambling statute of a man who served coffee to bettors, stacked chairs and tables, and cleaned ashtrays;  in other words, he “helped to provide an attractive place for bettors to congregate in order to wager.”  Id. at 55.   We relied on the Supreme Court's pronouncement that § 1955 “proscribes any degree of participation in an illegal gambling business, except participation as a mere bettor.”  Id. at 54 (quoting Sanabria v. United States, 437 U.S. 54, 70 n.26, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)).

The government presented evidence that Turnage helped to move equipment used in gambling activities, brought black drug dealers to the enterprise's gambling tables, helped Riddle run the gambling at Sharkey's, and that Altshuler described Turnage as one of his “main guys.”   As there was thus sufficient evidence to support the jury's determination that Turnage participated in the gambling business, Turnage can point to no miscarriage of justice that excuses his failure to renew his motion before the trial court.

2. 18 U.S.C. § 1959 (Violent Crimes in Aid of Racketeering Activity)

Turnage also argues that the government failed to establish an element of 18 U.S.C. § 1959 in his case, namely, that he participated in the Biondillo murder “for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.”  18 U.S.C. § 1959(a).   The basis for the argument is that Turnage is African-American, and there were no African-American “made” members of La Cosa Nostra.

The indictment charged Turnage with murder “as consideration for the receipt of, and as consideration for a promise and an agreement to pay, a thing of pencuniary value from the Strollo Enterprise, and for the purpose of gaining entrance to and maintaining and increasing [his] position[ ] in the Strollo Enterprise[.]”  The indictment tracks § 1959's terms except that the statute offers the motivations of pecuniary gain “or” enterprise advancement, in the alternative.   See 18 U.S.C. § 1959(a).

The government responds that Turnage was a member of the RICO enterprise, even if he could not become a “made member” of the Mafia, and he committed the murder to further the enterprise.   The indictment charged Turnage with being part of “the Strollo enterprise,” which included “associates” as well as “members” of the “family”;  the enterprise therefore was not limited to “made members” of the mafia but included those who furthered Lennie Strollo's illegal operations.

There was testimony that Turnage did whatever Altshuler needed, and that he was involved in the gambling business;  the government thus presented evidence of his association with the enterprise.   The goal of the murder was to further Strollo's enterprise, since the victim was a Strollo rival.   The Court of Appeals for the Second Circuit has explained that § 1959's provision on entering or rising in a RICO enterprise covers “violent crimes committed ‘as an integral aspect of membership’ in such enterprises[.]”  United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.1992) (citation omitted).   There was sufficient evidence that Turnage was involved in the murder as an integral part of the RICO enterprise and that his participation was due to his role in the enterprise.

C. Conspiracy Withdrawal Jury Instruction (Turnage)

Turnage argues that the district court erred in not instructing the jury on withdrawal from a conspiracy.   However, Turnage did not request such a jury instruction, nor did he object to the jury instructions given.   This claim may therefore only be reviewed for plain error.  United States v. Olano, 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

One of the racketeering acts underlying the conspiracy counts in the indictment was a conspiracy to murder Paul Gains.   Turnage claims that he had withdrawn from the conspiracy to murder Gains because he was in jail at the time of the shooting of Gains.   Withdrawal from a conspiracy is an affirmative defense, and the defendant must present evidence that he took affirmative action to withdraw.  United States v. Battista, 646 F.2d 237, 246 (6th Cir.1981).   There is no evidence that Turnage took any affirmative action to withdraw from the conspiracy, and the mere fact of his incarceration is insufficient to establish the volitional act necessary for withdrawal.   See Untied States v. Nava-Salazar, 30 F.3d 788, 799 (7th Cir.1994)(rejecting defendants' claim that the fact of their incarceration alone entitled them to an instruction on withdrawal from a conspiracy);  United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir.1991)(same).   Moreover, withdrawal from a conspiracy will not preclude a conspiracy conviction if overt acts were already taken prior to the withdrawal;  an effective withdrawal would only protect a defendant from liability for future crimes by the co-conspirators.   See United States v. Chambers, 944 F.2d 1253, 1265 (6th Cir.1991), superseded in part on sentencing issue by U.S. Sentencing Guidelines Manual § 2D1.5(a);  United States v. Gonzalez, 797 F.2d 915, 916-17 (10th Cir.1986);  United States v. Wooten, 688 F.2d 941, 947 (4th Cir.1982).   Here, the government presented evidence that Turnage agreed to the plan to murder Gains, and that he, along with two others, set forth with guns to shoot Gains in a café in late October, although that attempt ended when the conspirators found the area crowded with police.   He thus committed an overt act that renders him liable for a conspiracy to murder Gains, and withdrawal is not a defense for the overt acts already committed.   The court committed no error in not instructing sua sponte on withdrawal.

D. Presentence Report (Altshuler and Turnage)

Defendants Altshuler and Turnage claim that the district court erred when it sentenced them based on the underlying record without ordering a presentence report.   Altshuler contends that the court violated his due process rights and deprived him of the opportunity to make motions supporting downward departures.   Turnage asserts that the court's decision not to order a presentence report after the guilty verdict deprived him of time to decide whether or not to assist the government.   there were no objections to the sentencing procedures, to which counsel explicitly consented, so we review for plain error.  Olano, 507 U.S. at 735, 113 S.Ct. 1770.

Federal Rule of Criminal Procedure 32 provides that “[t]he probation officer must make a presentence investigation and submit a report to the court before the sentence is imposed, unless ․ the court finds that the information in the record enables it to exercise its sentencing authority meaningfully under 18 U.S.C. § 3553;  and ․ the court explains this finding on the record.”  Fed.R.Crim.P. 32(b).1

The court set forth the reasons for which it found a presentence report unnecessary.   It had presentence reports for Riddle and Altshuler prepared for other offenses, and it had been involved in the case since 1997.   Moreover, a statutory minimum of life imprisonment applied under 18 U.S.C. § 1959 for Turnage and Riddle, and the only factor that would have supported a downward departure under the statute was a government motion for substantial assistance, which was not made.   See 18 U.S.C. § 3553(e).   For Altshuler, the guidelines for the RICO counts involving murder required life imprisonment, and the judge did not find any downward departures applicable.   See U.S. S entencing G uidelines Manual §§ 2A1.1, 2E1.1(a)(2) (2000).

Although such a practice of sentencing a defendant without a presentence report is discouraged, we are unable to say that, under the unusual circumstances of this case, there was reversible error.   Defense counsel agreed to the procedure, and the court set forth its reasons on the record, indicating that is had sufficient information on the defendants, and that it lacked discretion to vary a statutory minimum sentence for two of the three defendants.

E. Admission of Strollo's Testimony

Defendants contend that the court should have suppressed Strollo's testimony as a violation of 18 U.S.C. § 201(c), which prohibits giving something of value in exchange for testimony.   Since defendants did not object to Strollo's testimony at trial, that complaint is subject only to plain error review.   Olano, 507 U.S. at 735, 113 S.Ct. 1770.

The government made a plea agreement with Strollo in which it agreed to drop a forfeiture count in the amount of ten million dollars, as well as some property, in exchange for his testimony.   We have held that 18 U.S.C. § 201 does not apply to the government, so plea agreements are not violations of the statute.  United States v. Ware, 161 F.3d 414, 418-19 (6th Cir.1998).   In the instant case, there was no error in admitting the testimony.   Moreover, the plea agreement was disclosed, and defense counsel were able to cross-examine Strollo on the subject of the agreement.   The court also gave an instruction cautioning the jury about the credibility of plea agreement testimony.

Defendants also argue that the use of the testimony violated the Ohio Code of Professional Responsibility, which state that a lawyer shall not pay a witness “contingent upon the content of his testimony or the outcome of the case.”   O hio Code of Prof'l Responsibility DR 7-109(C) (West 2000).   The plea agreement was not contingent on the trial outcome or the content of the testimony;  instead, it required Strollo to give “truthful, complete, and forthright information.”

II.

Defendants' convictions and sentences are, therefore, affirmed.

FOOTNOTES

1.   Altshuler was not convicted under 18 U.S.C. § 1959.

1.   Altshuler was not convicted under 18 U.S.C. § 1959.

FN1. 18 U.S.C. § 3553 requires the court to consider several factors in sentencing:  the nature and circumstances of the offense;  the history and characteristics of the defendant;  the need for the sentence to reflect the offense, to deter crime, to protect the public, and to provide rehabilitation;  the kinds of sentences available;  the sentencing range established for the category of offense;  sentence commission policy statements;  the avoidance of unwarranted sentence disparities;  and the need to provide restitution.  18 U.S.C. § 3553(a)..  FN1. 18 U.S.C. § 3553 requires the court to consider several factors in sentencing:  the nature and circumstances of the offense;  the history and characteristics of the defendant;  the need for the sentence to reflect the offense, to deter crime, to protect the public, and to provide rehabilitation;  the kinds of sentences available;  the sentencing range established for the category of offense;  sentence commission policy statements;  the avoidance of unwarranted sentence disparities;  and the need to provide restitution.  18 U.S.C. § 3553(a).

ALAN E. NORRIS, Circuit Judge.