United States v. Thomas James Hively ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3349
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United States of America, *
*
Appellee, *
*
v. *
*
Thomas James Hively, also *
known as T.J. Hively, *
*
Appellant. *
___________ Appeals from the United States
District Court for the Eastern
No. 04-3352 District of Arkansas.
___________
United States of America, *
*
Appellee, *
*
v. *
*
Wesley John Ketz, *
*
Appellant. *
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Submitted: October 10, 2005
Filed: February 10, 2006
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Before ARNOLD, BOWMAN, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Thomas James "T.J." Hively, the elected prosecuting attorney for the Sixteenth
Judicial District of Arkansas, and his law partner and deputy prosecuting attorney
Wesley John Ketz were convicted of mail fraud and racketeering after a jury trial.
They appeal, both arguing that there was insufficient evidence of their guilt. Hively
also contends that the district court1 erred in not holding an evidentiary hearing on his
claim of double jeopardy and in its forfeiture order. Ketz makes two additional claims
of error by the district court: rejoining his case to Hively's and excusing a juror during
deliberations without seating an alternate. We affirm.
I.
In 2000 Hively, Ketz, and bail bondsman Gary Wayne Edwards were indicted
on sixty four counts charging crimes related to the prosecuting attorney's office, which
Hively held from 1993 until 1998. Count 1 alleged a pattern of racketeering activity
in violation of 18 U.S.C. § 1951 (RICO); fourteen of the alleged predicate acts were
connected to two schemes to obtain federal and state grant money for special legal
work related to drug and child support enforcement. Under the grant programs the
individual prosecutors who did the work were to receive the supplemental funds
furnished to the office. Hively himself was not eligible for any grant money , but he
nevertheless arranged to receive some $429,391.47 of the funds between 1995 and
1998. These two grant funding schemes were also the basis for the mail fraud and
money laundering charges in Counts 2 - 34 of the indictment.
The first program grant came from the United States Department of Justice and
was administered by the Arkansas Office of Intergovernmental Services. It was
intended to pay a part time deputy prosecutor to process drug cases for the Sixteenth
1
The Honorable George Howard, Jr., United States District Judge for the
Eastern District of Arkansas.
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Drug Task Force (DTF). As an elected prosecuting attorney, Hively was disqualified
from receiving DTF grant money, but he appointed Ketz as his deputy and represented
through several grant applications and subgrant award letters mailed to the state that
Ketz was primarily responsible for the DTF cases. Although Hively prosecuted all the
felony drug cases, reviewed all related search warrants, and generally handled most
of the important legal issues related to drug enforcement, it was Ketz who signed his
name to the monthly contractor reports detailing the DTF work. Ketz then received
monthly checks from the state which he would first deposit in his professional account
and subsequently write Hively a check for the same amount. The government's
evidence indicated that Ketz funneled approximately $88,361 in DTF grant money to
Hively in this way. When Ketz learned in November 1997 that a search warrant had
been executed on their law firm, he attempted to refund to the state the last amount he
had received and passed on to Hively. The DTF program was also the basis for
Counts 14 and 15 which charged Hively and Ketz with mail fraud, in violation of 18
U.S.C. § 1341, and Counts 16 - 34 which alleged twenty acts of money laundering,
in violation of 18 U.S.C. § 1956(c)(4)(B).
The second grant program involved the Sixteenth Child Support Enforcement
Unit (CSEU) which was funded under a cooperative agreement with the Arkansas
Office of Child Support Enforcement. Under this program the state agreed to
reimburse the prosecuting attorney's office for legal child support enforcement work.
As with the DTF grant money, the office was to pass the funds directly on to the
attorney working on the cases. Hively appointed Vickie Warner, an associate in his
and Ketz's law practice, as the deputy prosecuting attorney in charge of CSEU matters.
Although it was Warner who did virtually all of the CSEU legal work, Hively put his
own name or that of the firm on the reimbursement forms mailed to the state, and he
kept almost all of the money. There was evidence that most CSEU matters involved
relatively little legal work and that administrative work could not be reimbursed, and
the indictment also alleged that Hively pocketed funds for work that was never done
or that he knew was not covered by the agreement. There was evidence that he took
approximately $332,000 in supplemental CSEU funds between 1995 and 1998.
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Counts 2 - 13 of the indictment alleged eleven acts of mail fraud by Hively involving
reimbursement forms submitted as part of the CSEU scheme.
Some of the other RICO predicate acts charged against Hively and Ketz alleged
mail fraud involving a payback from the salary of another deputy prosecuting
attorney, David Miller, a scheme that was also the basis for mail fraud Counts 35 - 62.
The remaining predicate acts involved three separate attempts at extortion by Hively
and Edwards who allegedly conspired to extort real property from John Milton
Northrup, a man charged with molestation, and from Kathy Sampson Clark, whose
husband was charged with murder, as well as approximately $3000 from Troy Gibson,
who had been charged with drunk driving. The extortion allegations in respect to
Northrup and Clark were also the basis for Counts 63 and 64 of the indictment which
charged Hively and Edwards with conspiring to affect interstate commerce through
extortion, in violation of 18 U.S.C. § 1951(a).
The case was initially assigned to the Honorable James M. Moody. All three
defendants moved for severance, and the motions of Ketz and Edwards were granted
on the grounds that a joint trial could prejudice them since there were more charges
and evidence against Hively and because Hively and Ketz had a close association as
law partners. Judge Moody subsequently decided to try Hively's case first. At the
close of the government's evidence, Hively successfully moved for acquittal on the
grounds of insufficient evidence on Count 13 (CSEU mail fraud) and Counts 35 - 62
(Miller salary mail fraud). At the close of the defense case, Judge Moody also
dismissed Counts 16 - 34 (DTF money laundering). This left only Count 1 (RICO),
Counts 2 - 12 (CSEU mail fraud), Counts 14 and 15 (DTF mail fraud), and Counts 63
and 64 (conspiring to extort real property) for submission to the jury. The jury was
unable to reach a verdict on any of the counts after approximately three days of
deliberations, and the court declared a mistrial on March 15, 2002. Hively then
moved for a judgment of acquittal on all remaining counts, and the court took the
motion under advisement.
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Some six weeks later on May 2, 2002, counsel were informed that a signed
order on Hively's motion for acquittal would be available at the clerk's office the next
day. Without the order having been filed or either side knowing its contents, the
United States Attorney for the Eastern District of Arkansas sent Judge Moody a letter
bringing a potential conflict to his attention. The letter pointed out that before going
on the bench in 1995, the judge had defended Hively in a malpractice action brought
in March 1992 by a brother of defendant Edwards. Judge Moody immediately
recused himself from the severed cases which were then reassigned to the late Judge
Stephen Reasoner. After Judge Reasoner had to withdraw because of illness, they
were reassigned to Judge George Howard, Jr.
II.
After the case was transferred to Judge Howard, the government moved to
rejoin the charges against Ketz and Edwards with the sixteen counts remaining against
Hively. Judge Howard found that the circumstances had changed significantly since
the original severance decision. Most of the charges in the original indictment had
been dismissed by the former presiding judge, and the only remaining charges against
Ketz were racketeering and DTF mail fraud. The court concluded that at this point
separate trials were not needed, and it granted the rejoinder motion. Hively moved for
an evidentiary hearing to disclose the contents of Judge Moody's unfiled order and to
dismiss on double jeopardy grounds if he had decided to grant the motion for
acquittal. Judge Howard denied the motion for an evidentiary hearing; Hively
attempted two interlocutory appeals, both of which were summarily dismissed by this
court. See United States v. Hively, No. 02-2292 (8th Cir. July 2, 2002) (order
dismissing interlocutory appeal), cert. denied, 537 U.S. 1073 (2002); United States.
v. Hively, No. 03-3022 (8th Cir. Oct. 1, 2003) (order dismissing interlocutory appeal).
The case proceeded to a joint trial on the remaining charges against all these
defendants. The trial lasted from February 2 to March 5, 2004. The government
called thirty five witnesses and offered several hundred exhibits. Both Hively and
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Edwards testified, and the defendants called four other witnesses and offered over one
hundred exhibits. The government witnesses included members of Hively's office
staff who were familiar with the workings of both the DTF and CSEU grant programs,
government officials who had dealt with Hively and Ketz in relation to both programs,
and victims of the extortion attempts by Hively and Edwards. Exhibits included
copies of the grant applications, subgrant award letters, and reimbursement forms used
to perpetrate the DTF and CSEU schemes; records of cash transfers between Ketz and
Hively; and lewd images of Northrup used by Hively and Edwards in their extortion
attempt.
After the jury had been deliberating for about a day and a half, one of the jurors
informed the court that her husband had experienced a mental breakdown in
Massachusetts which would require hospitalization and that she would have to leave.
The district court held a hearing in chambers before deciding to excuse her and to
proceed with the eleven remaining jurors. The district court reasoned that the jury
might have already reached a decision on some of the charges and that the
introduction of a thirteenth juror could prove problematic. No objection was recorded
to the court's procedure or to its decision to excuse the juror, but counsel for Ketz did
object to the failure to seat an alternate.
The jury eventually deadlocked on eleven of the remaining counts, including
all the charges against Edwards, but it reached a verdict on five counts. Hively was
convicted of mail fraud on Counts 11, 12, 14, and 15 (for offenses in March 1998,
May 1998, July 1996, and April 1997 respectively), Ketz was convicted for aiding and
abetting on Counts 14 and 15, and both men were convicted of racketeering on Count
1. The district court imposed concurrent five year sentences on Hively for each count
with two years suspended and three years of supervised release. It also ordered Hively
to forfeit as RICO proceeds the entire $429,391.47 he had received from the CSEU
and DTF grants. Although Hively had not requested that the amount of RICO
forfeiture be determined by the jury, he moved to vacate the forfeiture order almost
four months after it was entered but never obtained a ruling on the motion. Ketz was
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sentenced on each count to concurrent five year terms with three years suspended and
three years of supervised release.
These appeals followed. Hively challenges the sufficiency of the evidence,
argues that he was entitled to an evidentiary hearing on his double jeopardy claim, and
attacks the validity of the forfeiture order. Ketz also challenges the sufficiency of the
evidence and contends that the district court erred in rejoining his case to Hively's and
in failing to seat an alternate for the juror excused during deliberations.
III.
A.
Hively contends that there was insufficient evidence to convict him of either
mail fraud or racketeering. We review de novo the district court's denial of a motion
for a judgment of acquittal. United States v. Howard, 394 F.3d 582, 585 (8th Cir.
2005). In assessing whether the evidence was sufficient to convict, we view the
record in a light most favorable to the government when it prevailed before the jury.
United States v. Ramirez, 350 F.3d 780, 783 (8th Cir. 2003).
As to his mail fraud convictions, Hively first contends that the two counts
connected to the DTF scheme were based almost entirely on the testimony of David
Wilkerson, an official who administered the state program and who testified that
Hively actually did much of the work attributed to Ketz. Since Wilkerson did not
have regular contact with any of the defendants, Hively argues that his testimony was
outweighed by other evidence. As examples he points to the testimony of Jerry
Duran, an official who said that the state "got fair bang for their buck," and of Agent
Mike Lowe, who testified that Ketz handled "most of the municipal and everyday
legal affairs" of the task force. The government counters that there was ample
evidence to convict Hively on the DTF mail fraud counts because the issue there was
whether Ketz had done enough significant work to justify the false impression
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conveyed to state officials that he had primary responsibility for many DTF matters.
According to the government, it showed at trial that Hively had done most of the
important work while seeking to convey the impression that it was being done by
Ketz. Hively also argues that the evidence did not show that the mails had been used
since the DTF grant applications were routinely hand delivered. The government
responds by pointing out that the DTF mail fraud charges were based on the subgrant
award letters mailed to Hively to be signed and returned. Wilkerson testified that
these letters were in fact returned by mail, and it was up to the jury to decide whether
or not to believe his testimony.
Hively finally contends with regard to his CSEU mail fraud convictions that the
government did not prove intent to defraud and that he had done most of the work on
nights and weekends when the witnesses who testified against him were not present.
In response the government points to testimony by Warner and others in Hively's law
office that very little legal work was actually required for most CSEU matters and that
Hively was repeatedly informed by the state that he could not take money for work
not personally performed. There was evidence that these warnings played a role in
eventually causing Hively to abandon the CSEU contract, and the government asserts
that proof of Hively's knowledge of the applicable rules and his acts in violation of
them show his intent to defraud. See United States v. Parker, 364 F.3d 934, 940-42
(8th Cir. 2004) (evidence that defendant was aware he was violating governing
regulations relevant to show motive and intent for mail fraud).
In order to establish mail fraud the government must prove that the defendant:
1) voluntarily and intentionally devised or participated in a scheme to defraud; 2)
entered into the scheme with intent to defraud; 3) knew that it was reasonably
foreseeable that the mails would be used; and 4) used the mails in furtherance of the
scheme. United States v. Bearden, 265 F.3d 732, 736 (8th Cir. 2001). Although
Hively disputes many issues of fact involving both grant schemes, the jury apparently
did not find his trial testimony credible in light of the other evidence, which included
records and testimony by his staff and Arkansas officials showing that he had been
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primarily responsible for most DTF matters despite the representations that the work
was being handled by Ketz. On factual determinations such as the credibility of
witnesses the jury's verdict controls. See United States v. Little Dog, 398 F.3d 1032,
1036 (8th Cir. 2005).
To establish that the mails were used in connection with the DTF counts, the
government had only to show mailings which were "incident to an essential part of the
scheme or a step in the plot." United States v. Mooney, 401 F.3d 940, 946 (8th Cir.
2005) (internal quotations omitted). The jury could reasonably find from the evidence
that the DTF subgrant award letters had been returned by mail in order to obtain
payment, and Hively does not dispute that the mails were used in furtherance of the
CSEU scheme. Taking the evidence in a light most favorable to the government as
we must in light of the verdict, we conclude that there was sufficient basis for a
reasonable jury to find beyond a reasonable doubt that Hively committed the four
counts of mail fraud of which he was convicted.
Hively also challenges the sufficiency of the evidence underlying his RICO
conviction, arguing that the government failed to prove that he engaged in a pattern
of racketeering activity through which a criminal enterprise conducted its affairs. See
United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995). In order to show a
pattern of racketeering activity, the evidence must show continuity between the
separate criminal acts predicate to a RICO violation. H.J., Inc. v. Northwestern Bell
Telephone Co., 492 U.S. 229, 239 (1989). Continuity can be shown by related acts
continuing over a period of time lasting at least one year (closed ended continuity),
Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208, 1215
(8th Cir. 1993), or by acts which by their very nature threaten repetition (open ended
continuity). Northwestern Bell, 492 U.S. at 241.
Hively maintains that the government did not show either type of continuity and
so failed to establish a pattern of racketeering activity. He contends there was no
closed ended continuity because he was convicted of only two predicate acts of mail
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fraud in relation to each grant program, these acts occurred within a year of each
other, and the two grant schemes were not sufficiently related to be considered parts
of the same enterprise for RICO purposes. The evidence also did not show open
ended continuity he claims, for the transactions associated with each grant scheme
were all completed when Hively left office so there was no threat of future illegal
activity.
The government asserts that both forms of continuity were sufficiently shown
to make out a pattern of racketeering activity. It argues that as to closed ended
continuity, the two schemes were really different parts of one single overarching
criminal enterprise centered on the prosecuting attorney's office and so the four
predicate acts of mail fraud spanning more than a year can be considered together. As
to open ended continuity, it argues that the DTF scheme would have continued into
the future but for the search warrant executed against Hively's law firm.
Criminal acts are sufficiently related to be considered part of the same
enterprise if they had the same or similar purposes, results, participants, victims or
methods of commission, or if they were otherwise "interrelated by distinguishing
characteristics" as opposed to being "isolated events." Id. at 240. We are satisfied
here that the DTF and CSEU schemes were sufficiently related so that they could be
considered parts of the same enterprise on the issue of closed ended continuity. They
shared a common central participant (Hively), a common victim (Arkansas), a
common purpose and results (Hively's enrichment), and common methods of
commission (abuse of Hively's power as prosecuting attorney). We conclude that the
jury could reasonably consider the predicate acts connected to each scheme as part of
one single enterprise in determining whether or not Hively was guilty of racketeering.
Even if the predicate acts had not extended over a period of at least one year,
there was also a sufficient threat of repetition in connection to the DTF scheme to
show open ended continuity. At the time the search warrant was executed on his firm,
Hively was still in office and still receiving DTF grant money from Ketz on a monthly
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basis (he had deposited the most recent check the prior week). A reasonable jury
could therefore have found that a "distinct threat of long-term racketeering activity"
remained. Handeen v. Lemaire, 112 F.3d 1339, 1353 (8th Cir. 1997) (internal
quotations omitted). Taking the evidence in a light most favorable to the government,
we conclude that there was sufficient basis for the jury to find that Hively engaged in
a pattern of racketeering activity.
B.
Hively next argues that he had a colorable double jeopardy claim and should
have received an evidentiary hearing on it before he went to trial before Judge
Howard. He argues that Judge Moody had decided his motion for acquittal on the
charges remaining from the first trial before his recusal and that the fact the order had
not been filed is inconsequential because filing is merely a ministerial act. The
government responds that an order for acquittal must be filed for entry of any
judgment and that Judge Moody’s order would have been a nullity in any event
because he should have recused himself at the outset of the case. It also contends that
Judge Howard would not have been required to conduct an evidentiary hearing even
if Hively had made out a colorable double jeopardy claim.
The Fifth Amendment prevents criminal defendants from being "twice put in
jeopardy" in connection with the same offense, a guarantee that encompasses a second
prosecution for the same offense after either conviction or acquittal as well as the
imposition of multiple punishments. United States v. DiFrancesco, 449 U.S. 117, 129
(1980). A double jeopardy claimant bears the initial burden to establish a non
frivolous prima facie claim. United States v. Bennett, 44 F.3d 1364, 1368 (8th Cir.
1995). If a prima facie showing is made, a separate evidentiary hearing may be
required, see, e.g., United States v. Benefield, 874 F.2d 1503, 1508 (11th Cir. 1989),
but only if the relevant facts cannot otherwise be ascertained. See United States v.
Curry, 328 F.3d 970, 974 (8th Cir. 2003). We review legal issues related to double
jeopardy de novo. United States v. Okalie, 3 F.3d 287, 289 (8th Cir. 1993).
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Hively cites no case law in support of his contention that the preparation of an
unfiled and unpublished order on a motion for acquittal could establish a prima facie
case of double jeopardy and that such an order could bar prosecution of the fifteen
remaining counts against him. What he cites instead is a treatise distinguishing the
“judicial act” of rendering judgment from the “ministerial act” of filing or entering an
order in the official record: “the judgment itself is not that which may be entered or
recorded, but that which is considered and delivered by the court.” 46 Am. Jur. 2d,
Judgments § 123 (1994). In the circumstances of this case we need not dwell on the
difference between judicial and ministerial acts, for here no judgment was ever
delivered by the court. Judge Moody recused himself before his order was released,
thus ending his authority to act in the case. His draft order, whatever its contents,
never took effect. We conclude that Hively raised no colorable double jeopardy claim
and that the district court did not err by declining to hold an evidentiary hearing.
C.
Hively finally argues that the district court's forfeiture order was invalid
because it was based on factual findings made by a judge rather than a jury in
violation of United States v. Booker, 125 S. Ct. 738 (2005), Blakely v. Washington,
124 S. Ct. 2531 (2004), and Fed. R. Crim. P. 32.2. He also maintains that even if it
were proper for the court to calculate the forfeiture amount, its figure was erroneous
because it included the total proceeds from the CSEU and DTF schemes even though
he had only been convicted of two predicate acts of mail fraud for each scheme and
his legitimate expenses had not been deducted. The government responds that Hively
waived this issue by failing to request a jury determination of the forfeiture amount,
by waiting four months after the order was entered to object to the amount found by
the court, and by never obtaining a ruling on his motion to vacate the order. It also
argues that Booker and Blakely do not apply to criminal forfeitures and that the court's
calculation of the forfeiture amount was correct under applicable law.
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Title 18 of the United State Code, § 1963, provides for the forfeiture of all
RICO proceeds. Although criminal forfeitures are no longer required by statute to be
submitted to a jury, a party is entitled to a jury determination under Rule 32.2(b) if one
is requested. Hively made no such request. Moreover, Hively did not object to the
forfeiture order at the time it was issued by the district court and never sought a ruling
on his eventual motion to vacate it. See United States v. Olson, 22 F.3d 783, 785-86
(8th Cir. 1994) (post trial objections to jury instructions on forfeiture insufficient to
avoid waiver on appeal); United States v. Wagoner, 713 F.2d 1371, 1374 (8th Cir.
1983) (failure to obtain ruling on motion precludes appellate review). We conclude
that Hively waived his right to challenge the forfeiture order on appeal and thus
review for plain error.
Since Booker specifically referred to the forfeiture provision of the Sentencing
Reform Act, 18 U.S.C. § 3554, which incorporates the relevant provisions of § 1963,
as "perfectly valid," 125 S. Ct. at 764, we conclude that the district court did not err by
calculating the forfeiture amount. Nor was the amount the court calculated erroneous.
RICO proceeds are defined as the "gross receipts of the illegal activity," precluding
any deduction for expenses. United States v. Simmons, 154 F.3d 765, 769-70 (8th
Cir. 1998). We have previously rejected the contention that a RICO forfeiture must
be based only on the particular predicate acts for which the defendant was convicted.
See id. at 769 (RICO codefendants jointly and severally liable for entire proceeds of
RICO enterprise regardless of whether they were involved in every part). Hively has
not shown the district court plainly erred in its forfeiture order.
IV.
A.
Ketz also challenges the sufficiency of the evidence. He argues that the
government failed to demonstrate that he had the requisite criminal intent to aid and
abet mail fraud because he had been "instructed by his boss to report all (DTF related)
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felony prosecutions," he never asserted that he personally handled all of the work, and
it was not his fault that Hively used him as part of a broader scheme to mislead. The
government counters that Ketz's bad faith was evidenced by his willingness to sign
various reports giving the false impression that he was working on cases which were
actually being handled by Hively, his making out checks to Hively for the amount of
grant funds he received, and his subsequent attempt to return DTF funds to the state
upon learning that a search warrant had been executed at their law firm.
The government was not required to show that Ketz personally made a
misrepresentation in order to prove his intent to aid and abet mail fraud so long as it
could prove the existence of an overall scheme in which he knowingly participated.
See United States v. Whitehead, 176 F.3d 1030, 1038 (8th Cir. 1999) (existence of
fraudulent scheme itself serves as evidence of intent to defraud). The issue of whether
Ketz knowingly participated in the DTF scheme is a question of fact which is the
province of the jury. See Ramirez, 350 F.3d at 783.
Ketz also argues that the misrepresentations in which he was implicated were
not material. His agreement with Hively was nothing more than a "private
adjustment" through which Ketz contracted out some of his responsibilities as deputy
prosecuting attorney to his law partner. There was no pecuniary harm he claims since
the work paid for was actually done, in contrast to cases like Bearden. See 265 F.3d
at 732. In response the government contends that it did not have to prove actual harm
so long as it could show that the misrepresentation caused the state to make a different
decision than it otherwise would have made.
To prove mail fraud the government must show that material misrepresentations
were sent through the mail. Neder v. United States, 527 U.S. 1, 23-24 (1999). A
misrepresentation is material if it is capable of influencing the intended victim, see id.
at 24, whether or not the overall scheme or plan to defraud led to any loss of money
or property. Whitehead, 176 F.3d at 1037. According to the trial testimony of state
officials, Hively was not eligible to receive DTF program money under any
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circumstances, regardless of whether the work was done. The jury could reasonably
find that the arrangement by which Ketz helped represent that he was doing the work
and then forwarded the DTF funds to Hively involved material misrepresentations.
Ketz also challenges his RICO conviction on the grounds that the government
has not shown he engaged in a pattern of racketeering activity. The government
responds that Ketz was a participant in an overarching fraudulent enterprise that lasted
for more than one year and that the nature of Ketz's participation in the DTF scheme
was such that it would have continued into the future had it not been stopped by the
execution of a search warrant on his law firm.
To prove a pattern of racketeering activity, the government must show either
closed or open ended continuity. Northwestern Bell, 492 U.S. at 241. The former
requires a series of related predicate acts extending over at least one year, Primary
Care Investors, 986 F.2d at 1215, while the latter requires predicate acts that carry a
"distinct threat of long-term racketeering activity" in the future. Handeen, 112 F.3d
at 1353. The jury found that Ketz was an active participant in the DTF scheme which
was itself part of a larger criminal enterprise centered on the prosecuting attorney's
office and encompassing predicate acts that took place over more than a year. See
United States v. Gonzalez, 921 F.2d 1530, 1545 n.23 (11th Cir. 1991) (RICO violation
may be assessed on the basis of predicate acts committed by others). Moreover, Ketz
was still participating in the DTF scheme when law enforcement officials executed a
search warrant on his law firm and he appeared likely to continue but for that. The
evidence was therefore sufficient to establish continuity and show that Ketz engaged
in a pattern of racketeering activity.
B.
Ketz next complains that the district court erred in rejoining his case to those
of Hively and Edwards. He argues that he was entitled to severance because there was
a substantial likelihood of a prejudicial spillover effect from the greater amount of
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evidence against Hively. Since he and Hively were law partners, he claims that it
would have been difficult for the jury to compartmentalize the evidence, particularly
given the nature of some of the extortion charges against Hively and Edwards. The
government responds that Ketz's argument is not sufficient to counter the strong
preference for trying codefendants together, particularly those engaged in joint
activity, and that the jury was clearly able to compartmentalize the evidence against
the defendants since it found Hively and Ketz guilty of different charges and
deadlocked on Edwards.
Under Fed. R. Crim. P. 14(a) the issue of severance is entrusted to the "sound
discretion of the trial judge." United States v. Knife, 592 F.2d 472, 480 (8th Cir.
1980). Where two or more defendants have been charged in the same indictment,
there is a preference for a joint trial unless the benefits are outweighed by a clear
likelihood of prejudice. Zafiro v. United States, 506 U.S. 534, 537 (1993). Prejudice
can be demonstrated by showing that the jury will be unable to compartmentalize the
evidence as it relates to the separate defendants because of a “prejudicial spillover
effect.” United States v. Mickelson, 378 F.3d 810, 817 (8th Cir. 2004); United States
v. Lueth, 807 F.2d 719, 731 (8th Cir. 1986). The burden of showing a clear likelihood
of prejudice falls on the party seeking severance. United States v. Frazier, 280 F.3d
835, 844 (8th Cir. 2002).
Trying codefendants together not only conserves scarce time and resources, but
also "gives the jury the best perspective on all of the evidence and therefore increases
the likelihood of a correct outcome." Darden, 70 F.3d at 1528 (internal quotations
omitted). Severance is never warranted simply because the evidence against one
defendant is more damaging than that against another, United States v. Pecina, 956
F.2d 186, 188 (8th Cir. 1992), even if the likelihood of the latter's acquittal is thereby
decreased. See United States v. Gravatt, 280 F.3d 1189, 1191 (8th Cir. 2002). What
is required for a severance is a specific showing that a jury could not reasonably be
expected to compartmentalize the evidence. Lueth, 807 F.2d at 731.
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Ketz's claim of prejudice here is speculative and insufficient to overcome the
presumption in favor of a joint trial. The fact that Hively and Ketz were partners in
a law practice is not enough to show a clear likelihood of prejudice, particularly since
they used their firm accounts to funnel much of the fraudulently obtained grant
money. The two men were in fact closely associated in almost every aspect of their
professional lives, an association that continued in their criminal activity, making a
joint trial particularly appropriate. Although some of the extortion evidence which
did not pertain to Ketz was of an unsavory nature, the court's instructions to the jury
sufficiently distinguished the charges against each defendant to guard against any
spillover effect of evidence applicable only to the other defendants. See Mickelson,
378 F.3d at 818 ("The risk of prejudice posed by joint trials is best cured by careful
and thorough jury instructions."). Moreover, neither Hively nor Edwards, to whom
the evidence applied, was convicted on the extortion charges. We conclude that the
district court did not abuse its discretion by rejoining the defendants.
Ketz also argues that the earlier severance order was the law of the case. The
government responds that that doctrine has no application here and that the original
severance order could not be binding in any event because it was clearly erroneous.
The law of the case doctrine stands for the proposition that once a court decides upon
a rule of law, that decision is usually binding at subsequent stages of the same case.
Arizona v. California, 460 U.S. 605, 618 (1983). The doctrine does not apply to
interlocutory orders, however, for they can always be reconsidered and modified by
a district court prior to entry of a final judgment. Murr Plumbing , Inc. v. Scherer
Bros. Financial Services Co., 48 F.3d 1066, 1070 (8th Cir. 1995). The district court
was free to reconsider the original severance order, especially in the changed
circumstances after the dismissal of so many counts by the first trial judge.
C.
Ketz finally argues that the district court erred in excusing one of the jurors
during deliberations. He contends that the court should have further investigated the
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juror's request to be excused because of her husband's sudden health crisis in another
state in order to determine that good cause existed. The government responds that
Ketz waived this argument by failing to object below and that the court's decision was
supported by good cause. Ketz admits that he failed to object at the time the juror was
excused, but claims that his counsel had assumed that the departing juror would be
replaced by an alternate and did object when the district court announced that no
alternate would be seated. Since our study of the district court record indicates that
neither Ketz nor his counsel objected to the court's decision to excuse the juror, we
review that decision for plain error, Gonzalez, 339 F.3d at 728, but examine the
question of whether an alternate should have been seated for abuse of discretion. See
Frazier, 280 F.3d at 851.
After jury deliberations have begun, a trial court may excuse a juror only for
good cause. Fed. R. Crim. P. 23(b). Good cause for excusing a juror has been found
in many different fact situations, including a car accident involving a juror, see United
States v. Armijo, 834 F.2d 132, 134 (8th Cir. 1987), and a medical emergency
involving a family member. See Frazier, 280 F.3d at 850. Although an excused juror
may be replaced during deliberations, Rule 23(b) also permits the use of an eleven
person jury at the discretion of the trial court, particularly in the case of a protracted
trial. See Fed. R. Crim. P. 23(b) advisory committee's note.
The juror excused here learned that her already physically unwell husband had
experienced a severe mental breakdown in Boston which would likely require
hospitalization, and she felt it was necessary to go to his side. The problem arose after
a day and a half of jury deliberations following a four week trial. The case involved
multiple counts for the jury to consider, and the district court worried that the original
twelve jurors might have already decided factual issues. While it could have
instructed the jury to start its deliberations anew after seating an alternate, the court
was concerned that thirteen jurors could potentially be involved in deciding issues and
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that this would undermine the validity of any verdict. The procedure selected by the
experienced trial judge was permitted by the rule and was not an abuse of his
discretion.
V.
Since we conclude that there was sufficient evidence underlying the
convictions, that Hively has not made out a colorable claim of double jeopardy, that
rejoinder of the cases was proper, that the failure to seat an alternate juror during
deliberations was not an abuse of discretion, and that neither the district court's
forfeiture order nor its decision to excuse the twelfth juror were plainly erroneous, we
affirm the judgments of the district court.
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