Palmetto State Medical Center, Inc. v. Lifeline

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PALMETTO STATE MEDICAL CENTER,
INCORPORATED,
Plaintiff-Appellee,

v.

OPERATION LIFELINE; DAN W.
BROOKS; MICHAEL CLOER; TEBRA
CLOER; BENJAMIN DAWKINS; JAMES
FREEMAN; WILLIAM GAUTSCH;
GLENDA HAWKINS; ROBIN
HENDERSON; VIRGINIA HOMOL;
LEONARD KULL; RUTHIE KULL;
WALTER LEAGUE; JAMES MARLOW;
BETH MAY; LINVILLE MILLER;
No. 94-2447
GERALD MEDFORD; ENNY MCDOWELL;
WILLIAM PUTNAM; GROVER OWINGS;
LU RASH; SARA ROLLINS; RAYMOND
SANDFORD; ANNE SCHELL; STEPHEN
TIMMERMAN; JOY VAUGHN; ELIZABETH
WALSH; SUSIE WEDGEWOOD; LINDA
HILLYARD; STEVEN LEFEMINE;
CAROLYN FRIDAL; CARRIE HARROL;
ALBERT PADGETT; KAY MELVIN
DANIEL; CATHERINE GERMAN; GARY
HAWKINS; BRIAN MERRITT; DAVID
SCHELL,
Defendants-Appellants,
and
OPERATION RESCUE; SHERRY WATERS;
CAROL WILKINS; DAVID MATTHEWS;
DANNY BARTON; DONALD BOROUGHS;
FRED BRACKEN; LINDA BRACKEN;
VICKIE CARTER; DEBORAH DAVIS;
BENNIE DURHAM; JONATHAN HARDIN;
JEANETTE HORNE; LARRY LEE;
DARRELL LEWIS; ELLEN LEWIS;
RICHARD MERRITT; SUSAN MERRITT;
ROBERT NEWMAN; JOAN OWINGS;
HOWARD RITZENHALER; JAMES
RODERMOND; KATHERINE VARGO;
MIKE VARGO; KENNETH WATERS;
MIKE WHITE,
Defendants.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-89-2548-3-6)

Argued: May 2, 1995
Decided: July 2, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

_________________________________________________________________

Reversed in part, vacated in part, and remanded by published
opinion.
Judge Widener wrote the opinion, in which Judge Russell and Judge
Hall concur.

_________________________________________________________________

COUNSEL

ARGUED: David Wesley Holmes, HOLMES LAW FIRM, Green-
ville, South Carolina, for Appellants. Randall Scott Hiller, RAN-
DALL S. HILLER, P.A., Greenville, South Carolina, for Appellee.

2
OPINION

WIDENER, Circuit Judge:

Defendants appeal from judgments against them on state-law tres-
pass and civil RICO claims, assigning numerous errors committed by
the district court. For the reasons stated below, we reverse in
part and
vacate and remand in part.
Plaintiff Palmetto State Medical Center is a South Carolina corpo-
ration which provides gynecological services, including abortions,
to
its patients. Defendants originally were 66 individuals who oppose
abortion and two anti-abortion entities, Operation Lifeline and
Opera-
tion Rescue. On April 28, July 5, and July 8, 1989, anti-abortion
protestors demonstrated at the Palmetto clinic. Palmetto alleges
that
on each of these dates some or all of the defendants, participating
with Operation Rescue, trespassed on Palmetto property, blocking
the
entrance and preventing its patients from entering.

As a result of the protests, Palmetto filed an eight-count
complaint
against defendants in the district court. The only claims at issue
on
appeal are state-law trespass claims against 41 individuals,
Operation
Lifeline, and Operation Rescue, and civil RICO claims against four
of the individual defendants and Operation Rescue. 1

At trial, Palmetto called six defendants to the stand to testify.2
Pal-
metto also called Lorraine McGuire, an employee at the clinic, and
introduced numerous exhibits. At the close of Palmetto's case,
defen-
_________________________________________________________________
1 The district court granted directed verdicts to the defendants on
Pal-
metto's claims of state-law nuisance, assault and battery, and
interfer-
ence with contract, as well as on Palmetto's claim of conspiracy to
interfere with civil rights under 42 U.S.C. § 1985. These orders
have not
been appealed. No RICO claim was asserted against Operation
Lifeline.
Accordingly, that matter was not submitted to the jury, and no RICO
judgment was entered against Operation Lifeline.

2 The testifying defendants were Anne Schell, William Gautsch, Mel-
vin Daniel, Michael Cloer, Dan Brooks, and Joy Vaughn. Of these,
Miss
Schell, Brooks, and Gautsch were also named as defendants in
Palmet-
to's RICO claim.

3
dants moved for judgment as a matter of law on the trespass and
RICO claims. Before ruling on the motion, the district court
suggested
that Palmetto needed to introduce additional evidence of
defendants'
arrests and convictions for criminal trespass. Defendants objected
to
the introduction of this evidence on the court's own motion after
the
close of Palmetto's case, but the objection was overruled.

The trespass claims against 25 of the defendants did not go to the
jury.3 The remaining defendants rested without putting on evidence,
and the case was submitted to the jury. The jury found the
remaining
defendants liable for trespass and awarded totals of $2,150 actual
and
$43,500 punitive damages. The jury also found Operation Rescue,
Dan Brooks, William Gautsch, Anne Schell, and Steven Lefemine lia-
ble for RICO violations,4 with total actual damages of $25,000. The
district court trebled this amount for total RICO damages of
$75,000.

Defendants appeal, alleging several errors committed by the
district
court. Briefly, defendants argue that the district court erred in
denying
defendants' motion to compel discovery of the identities of certain
Palmetto patients, in admitting statistical evidence relating to
Palmet-
to's loss of clientele on the dates in question, in denying
defendants'
motion for judgment as a matter of law on the trespass and RICO
claims, in reopening Palmetto's case and admitting defendants'
answers to Palmetto's requests for admissions, in charging the jury
on
_________________________________________________________________
3 The district court, with Palmetto's consent, granted judgment as
a
matter of law in favor of 24 defendants on Palmetto's claims of
trespass,
and Palmetto does not appeal these orders. In addition, the
trespass and
RICO claims against defendant Carol Wilkins were dismissed during
trial due to Miss Wilkins' intervening personal bankruptcy filing.

4 The jury found in favor of defendants Glenda Hawkins, Walter
League, and Elizabeth Walsh on the RICO claims. The claim against
the
eighth individual RICO defendant, Carol Wilkins, was dismissed. See
supra note 3. Little or no proof was offered by Palmetto as to what
man-
ner of organization best fits Operation Rescue or Operation
Lifeline. The
complaint calls them voluntary associations, the answer indicates
that
each of those entities is a sole proprietorship, and if both are
true, each
would seem to be able to hold "a legal or beneficial interest in
property"
under section 1961(3). No objection having been taken by Operation
Rescue or Operation Lifeline to the name under which it was sued,
we
will leave any dispute with respect to that question for another
day.

4
the effects of those admissions, in charging the jury on the
effects of
a South Carolina real-property statute on the scope of Palmetto's
lease, and in refusing to allow defendants to testify as to their
reli-
gious convictions. Finally, defendants challenge the
constitutionality
of RICO as applied to the facts of this case. We address these
chal-
lenges below.

I. TRESPASS

In South Carolina, "[a]lthough the entry by a person on the prop-
erty of another may initially be lawful, the person becomes a tres-
passer when the person fails to depart after being asked by the
owner
to leave." Wright v. United Parcel Serv., Inc., 445 S.E.2d 657, 659
(S.C. Ct. App. 1994). For purposes of our analysis of the propriety
of
the judgment against defendants on Palmetto's trespass claims, we
will divide the defendants into three groups: the 35 non-testifying
individual defendants, the six testifying individual defendants,
and the
two organizations.

A. Answers to Request for Admissions

At the close of Palmetto's case, defendants moved for judgment as
a matter of law on both the trespass and RICO causes of action. The
court then discussed the lack of evidence supporting Palmetto's
tres-
pass claims, particularly relating to the defendants who had not
taken
the stand to testify. The district court granted a recess to allow
the
plaintiff to produce evidence to avoid a directed verdict. Palmetto
returned with defendants' answers to requests for admission,
specifi-
cally answers 12 and 13. Answers 12 and 13 are as follows, as to
each
of the individual defendants:
12. That this Defendant has been charged with the crime
of criminal trespass, in accordance with Section 16-11-610,
in the City or County of Greenville, South Carolina.

Answer: Admitted.

13. That this Defendant has been convicted of the crime of
criminal trespass, pursuant to Section 16-11-610, in the City
or County of Greenville, South Carolina.
5
 Answer: Admitted.

Defendants objected to the admission of these admissions as evi-
dence and argue on appeal that the district court erred in allowing
Pal-
metto to introduce the answers. We agree. Taken together, answers
12
and 13 establish only that defendants have been convicted of
criminal
trespass in or around Greenville, South Carolina. Nothing in the
record, for any defendant, ties the conviction admitted in answer
13
to the alleged trespasses at the Palmetto clinic on the dates in
ques-
tion.

Based on the evidence in the record, the jury could not find that
the
answers to the requests for admission are probative of plaintiff's
claim that defendants trespassed on the plaintiff's property on the
dates in question. As to the defendants who did not testify, there
sim-
ply is no other evidence of trespass in the record, as the district
court
recognized at trial. As to these defendants, then, the answers to
the
requests for admissions were irrelevant under Fed. R. Evid. 401 and
should not have been admitted. Although there is evidence in the
record from which a jury could infer that the testifying defendants
did
trespass on the plaintiff's property on the dates in question, see
infra
Part I.C, none of the evidence ties the conviction admitted in
answer
13 to the Palmetto clinic or to any of the dates alleged in
Palmetto's
complaint.5 Thus, as to these defendants, as well, the answers to
the
requests for admission were irrelevant. We therefore hold that the
dis-
trict court erred in admitting, at the close of plaintiff's
evidence,
answers 12 and 13 to plaintiff's requests for admissions.

B. Jury Instructions

Having determined that the admission of defendants' answers to
plaintiff's requests for admissions was error, we must now
determine
_________________________________________________________________
5 We note by way of example that several of the testifying
defendants
admitted involvement in, and arrest resulting from, protests at
another
abortion clinic in Greenville, South Carolina. Answers 12 and 13
are
completely consistent with events that occurred at that other
location.
Plaintiff simply never established, as was its burden, that the
arrests and
convictions to which defendants admitted occurred with respect to
plain-
tiff's clinic on any of the relevant dates.

6
the effect of this error. Defendants argue that the district
court's jury
charge was in error as it relates to the answers to plaintiff's
requests
for admissions. The court instructed the jury as follows:

Under the law, through their attorney, they admitted crimi-
nal trespass in this particular case. The effect of those
admissions in a court of law requires no further proof,
requires no further evidence. As a matter of law, that partic-
ular fact is admitted.

(emphasis added). It is at once apparent that this instruction,
even if
it did not, very nearly directed a verdict for the plaintiff on the
tres-
pass count. We agree that this instruction was erroneous. As noted
above, the admissions established no more than that these
defendants
have been convicted of criminal trespass in or around Greenville on
an unspecified date. The admissions do not establish, as the
district
court instructed, that the defendants trespassed"in this particular
case," i.e., at the Palmetto clinic on April 28, July 5, or July 8,
1989.

Because we are of opinion that the district court erred in
admitting
the answers to Palmetto's requests for admission and in instructing
the jury that no further evidence on the issue was needed, and
because
we have no doubt that this error was not harmless, we must at a
mini-
mum vacate the jury's verdict finding each defendant liable to Pal-
metto for trespass. We next address whether, as to each group of
defendants, the judgment should be reversed or the case remanded
for
new trial.

C. Motion for Judgment as a Matter of Law
Because no evidence was presented that the non-testifying defen-
dants were present on Palmetto's property on the dates in question
or
were in any way involved with Operation Lifeline or the incidents
of
April 28, July 5, or July 8, 1989, we hold that those defendants'
motions for judgment as a matter of law should have been granted.
Accordingly, we reverse the judgments on Palmetto's trespass claims
against defendants Tebra Cloer, Benjamin Dawkins, James Freeman,
Glenda Hawkins, Robin Henderson, Virginia Homol, Leonard Kull,
Ruthie Kull, Walter League, James Marlow, Beth May, Linville Mil-
ler, Gerald Medford, Kenny McDowell, William Putnam, Grover
7
Owings, Lu Rash, Sara Rollins, Raymond Sandford, Stephen Tim-
merman, Elizabeth Walsh, Susie Wedgewood, Linda Hillyard, Steven
Lefemine, Carolyn Fridal, Carrie Harrol, Albert Padgett, Kay
Padgett,
Michael Phillips, William Ramey, Billy Thames, Catherine German,
Gary Hawkins, Brian Merritt, and David Schell.

After reviewing the testimony of the six testifying defendants, we
find that there was sufficient evidence, drawing all inferences in
Pal-
metto's favor, to submit the trespass claims against these
defendants
to the jury. Accordingly, we affirm the district court's denial of
defen-
dants Anne Schell, Dan Brooks, Michael Cloer, William Gautsch, Joy
Vaughn, and Melvin Daniel's motions for judgment as a matter of law
on Palmetto's trespass claims. Because of the district court's
error in
admitting defendants' admissions 12 and 13 and in instructing the
jury on the effects of those admissions, however, the judgment as
to
each of these defendants is vacated and the action remanded for new
trial on Palmetto's trespass claims.

Finally, we review the evidence against Operation Rescue and
Operation Lifeline relating to trespass. There is no evidence that
Operation Rescue trespassed or conspired to trespass on Palmetto's
property on any of the relevant dates. Plaintiff presented no
evidence
at trial that Operation Rescue was affiliated with any individual
defendant or with Operation Lifeline, that Operation Rescue knew of
the organization or execution of Operation Lifeline's activities on
April 28, July 5, or July 8, 1989, or that Operation Rescue
provided
any support for those activities beyond the distribution of
literature.
None of this literature could reasonably be construed as
participation
in the activities of April 28, July 5, or July 8, 1989 at Palmetto.
To
hold Operation Rescue liable in these circumstances would be to
hold
it liable for every act of trespass that occurs in protest of
abortion in
this country based solely on the exercise of its constitutional
right to
advocate generally the cessation of abortions. Accordingly, we
reverse the trespass judgment against Operation Rescue.

Because there is evidence from which the jury could have found
that Operation Lifeline did participate in the protests of April
28, July
5, and July 8, 1989, with knowledge that unlawful trespass might
occur, we will not reverse the trespass judgment against Operation
Lifeline. However, as in the case of the individual testifying
defen-

8
dants, and because any judgment against Operation Lifeline need be
supported by their testimony, we vacate the trespass judgment
against
Operation Lifeline and remand for new trial in the light of the
district
court's error in admitting the answers to Palmetto's requests for
admission and in instructing the jury on the effects thereof.

II. RICO
The defendants also argue that the district court should have
entered judgment as a matter of law in favor of Operation Rescue,6
Dan Brooks, William Gautsch, Anne Schell, and Steven Lefemine on
the RICO count of Palmetto's complaint. The district court properly
instructed the jury that the defendants had a First Amendment right
to protest but could not exercise this right in a way that
wrongfully
infringed on Palmetto's right to provide abortion services.
Palmetto
alleged that the defendants exceeded the boundaries of lawful First
Amendment activity and violated 18 U.S.C. § 1962(c) and (d) 7 by
committing, or conspiring to commit, violations of the Hobbs Act,
18
U.S.C. § 1951. Palmetto sought treble damages under 18 U.S.C.
§ 1964(c).
_________________________________________________________________
6 In their brief, the defendants argue that the RICO judgment
against
Operation Lifeline should be reversed. Palmetto's brief also refers
to the
RICO judgment against Operation Lifeline. However, no RICO judg-
ment was entered against Operation Lifeline because it was never a
RICO defendant. We will assume that these references to Operation
Life-
line are the typographical errors they obviously were. The case was
tried
with Operation Rescue as a RICO defendant from the complaint, the
jury
was so instructed, the verdict form was to that effect, and the
RICO judg-
ment was against Operation Rescue, not Operation Lifeline.
7 Subsections (c) and (d) read:

(c) It 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.
 (d) It shall be unlawful for any person to conspire to violate
any
of the provisions of subsection . . . (c) of this section.

18 U.S.C. § 1962.

9
To prove a violation of § 1962(c), Palmetto must show that each
RICO defendant conducted an enterprise through a pattern of racke-
teering activity, Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496
(1985), and that Palmetto was injured in its business or property
as
the result of such conduct. See 18 U.S.C. § 1964(c); Sedima, 473
U.S.
at 496-97. To prove a RICO conspiracy under § 1962(d), Palmetto
must show that defendants conspired to violate § 1962(c).

Initially, Palmetto must show an enterprise, which is defined as an
ongoing organization, formal or informal, in which the various
asso-
ciates function as a continuing unit. United States v. Turkette ,
452
U.S. 576, 583 (1981). The enterprise must be distinct from the per-
sons alleged to have violated § 1962(c). New Beckley Mining Corp.
v. International Union, United Mine Workers of America , 18 F.3d
1161, 1163 (4th Cir. 1994); Busby v. Crown Supply, Inc. , 896 F.2d
833, 840 (4th Cir. 1990); United States v. Computer Sciences Corp.,
689 F.2d 1181, 1190 (4th Cir. 1982). Palmetto alleged in its com-
plaint that Operation Rescue was the RICO enterprise. A recovery of
money damages under 18 U.S.C. § 1964(c) is not against a RICO
enterprise, but against a RICO defendant who is a "person employed
by or associated with" a RICO enterprise. 18 U.S.C. § 1962(c).
To demonstrate a pattern of racketeering activity under § 1962(c),
Palmetto must prove that, at a minimum, each RICO defendant com-
mitted two acts of racketeering activity within a ten-year period.
18
U.S.C. § 1961(5). The predicate acts must be related and must
amount
to or pose a threat of continued criminal activity. See H.J. Inc.
v.
Northwestern Bell Tel. Co. , 492 U.S. 229, 240-43 (1989). Palmetto
alleged extortion under the Hobbs Act, 18 U.S.C.§ 1951, as the
rack-
eteering activity in this case. Extortion, attempted extortion, and
con-
spiracy to extort under the Hobbs Act are explicitly identified as
requisite predicate acts under § 1961. 18 U.S.C. § 1961(1)(B).

The record in this case, however, contains no evidence that Dan
Brooks, William Gautsch, Anne Schell, and Steven Lefemine, or any
of them, conducted Operation Rescue's affairs in violation of the
Hobbs Act because there is no evidence that these defendants con-
ducted any of Operation Rescue's affairs whatsoever on the dates in
question. Palmetto simply offered no proof to that effect.8 Because
_________________________________________________________________
8 Whether or not there may have been proof that the affairs of
Opera-
tion Lifeline were operated in violation of RICO or that Operation
Life-
10
Palmetto failed to prove an essential element of its RICO claims as
alleged in its complaint, the RICO judgments against Operation
Rescue,9
Lefemine,10 Brooks, Gautsch, and Miss Schell cannot stand. See
Riverwoods Chappaqua Corp. v. Marine Midland Bank , 30 F.3d 339,
343 (2d Cir. 1994).

III. OTHER ISSUES

On remand, we agree with the defendants that plaintiff cannot
recover damages based on the loss of patients without identifying
who
those patients are and permitting inquiry as to why they did not
appear for their scheduled appointments at Palmetto's clinic.
Palmetto
presented evidence of differentials in patient attendance rates on
the
_________________________________________________________________
line was a RICO enterprise are not questions before us, and we
express
no opinion on them.

9 In the appendix to this opinion, we have listed each reference in
the
trial record to Operation Rescue. The judgment against Operation
Rescue
as a RICO enterprise must be reversed in any event under New
Beckley
Mining, Busby, and Computer Sciences, because the RICO enterprise
must be distinct from the persons alleged to have violated §
1962(c).
New Beckley Mining, 18 F.3d at 1163; Computer Sciences, 688 F.2d at
1191; see also Brittingham v. Mobil Corp., 943 F.2d 297, 301 (3d
Cir.
1991).

Also, we have found no evidence that Operation Rescue engaged in,
authorized, advocated, conspired to commit, assisted in, or was
aware of
any of the predicate acts alleged in this case. To the extent
plaintiff has
shown that Operation Rescue provided nonspecific literature to
Opera-
tion Lifeline or expressed pleasure after the fact with the results
of a rele-
vant protest and published those results, it engaged in protected
activity
under the First Amendment and not in any Hobbs Act or other federal
violation.

10 We further note that Lefemine also could not be liable under
RICO
in any event because we have reversed the trespass judgment against
him
and because there is no evidence whatsoever that he engaged in or
con-
spired to engage in any illegal acts. The only evidence in the
record at
trial mentioning Lefemine is the appearance of his name and
telephone
number on a single Operation Lifeline document. Pl.'s Ex. 16. There
was
no proof before the jury establishing that Lefemine even knew of
the
existence of Operation Rescue.

11
relevant dates from 1988 to 1989, which it offered as proof of dam-
ages. Absent inquiry as to why the patients missed their
appointments,
however, we find this evidence speculative at best and thus
insuffi-
cient as a matter of law to establish the financial loss suffered
by Pal-
metto as the result of defendants' conduct. Suppose, for example,
one
of the patients missed her appointment because of a sick child.
That
missed appointment could not be laid at the door of the defendants.
Also, suppose, for example, that another patient missed her
appoint-
ment because of the pickets, having nothing to do with any
trespass.
That, also, could not be laid at the door of the defendants. While
admitting evidence of missed appointments might well have been
within the discretion of the district court with respect to
relevance,
admitting such evidence without permitting inquiry by the
defendants
of the patients as to the reasons for missed appointments would be,
by the same token, an abuse of discretion.

We also agree with defendants that the district court erred in
excluding their testimony as to their religious motives, but only
inso-
far as the testimony would have related to punitive damages. A
reli-
gious motive cannot shield the defendants from the consequences of
otherwise unlawful activity. However, the Supreme Court has decided
that evidence of a defendant's state of mind is admissible with
respect
to an award of punitive damages. Herbert v. Land, 441 U.S. 153,
162-63 (1979); Beckwith v. Bean, 98 U.S. 266, 274 (1879); accord,
Gilbert v. Duke Power Co., 179 S.E.2d 729, 723 (S.C. 1971) ("When
the recovery of exemplary damages is sought . . . evidence of any
fact
which legitimately tends to show the motive and intent of the
defen-
dant in doing the act complained of is admissible--as for example,
the existence or absence of malice or other aggravations essential
to
the allowance of such damages."). Testimony about the defendants'
religious convictions presents evidence of their state of mind and
thus
is admissible on the punitive damages question. Accordingly, the
tes-
timony should have been admitted, but only in connection with this
issue.

Finally, defendants argue that the district court erred in
instructing
the jury that South Carolina Code § 27-35-7011 "means that the
prop-
_________________________________________________________________

11 In all cases of tenancy the owner, landlord, or person

12
erty you are in possession of for tenancy purposes or used by you
shall be interpreted to come under the lease." (emphasis added).

While the record is not clear, apparently there was disagreement at
trial as to whether or not a parking lot supposedly used by
Palmetto
was a part of Palmetto's leased property on which the abortion
clinic
was conducted. The lease between the owner of the premises and Pal-
metto is an exhibit, and, absent explanation, which does not appear
in the record, indicates that a building of 2,880 square feet is
100%
of the property included in the lease. That, of course, would
exclude
the parking lot. There was also evidence, however, which may have
tended to show that the property used by Palmetto included a
parking
lot, shown on a tax map, which was referred to by a witness and was
introduced into evidence, but which does not appear in the record.
The apparent intent of the introduction of the tax map was to show
that the parking lot used by Palmetto was, in fact, included in the
leased property. No instruction was given to the jury with respect
to
any dispute over the parking lot.

If there is disagreement between the parties, as there seems to be,
over whether or not the parking lot was a part of Palmetto's
property
on which it could prevent trespassing, that question may be tried
on
remand.

The statute in question, which has not been construed by the South
Carolina courts, seems to us to be little, if anything, more than
a
restatement of the law that a tenant is estopped to deny his
landlord's
title. See Maples v. Spencer, 81 S.E. 483, 484 (S.C. 1914); Minor
on
Real Property § 383 (2d ed. 1928). There was no issue in the case
which has come to our attention of any doubt that Palmetto held
what-
ever property it leased under its landlord. And the instruction,
even
if incorrect and out of place, might not be reversible error.
Neverthe-
less, we recognize that that part of the instruction we have
italicized
_________________________________________________________________

entitled to possession shall be deemed to be in possession of
the
real estate used or occupied by the tenant and the tenant
 shall be
deemed to be holding thereunder.

S.C. Code § 27-35-70.

13
might be quite damaging to the defendants. On remand, the district
court should not give any instruction on the statute mentioned
unless
it is related to something at issue in the case.

Finally, since there is no liability in this case under the RICO
stat-
ute, we should not, and do not, decide the questions raised by the
defendants with respect to whether or not the statute is
constitution-
ally invalid as applied. Ashwander v. T.V.A, 297 U.S. 288, 341, 347
(1936) (Brandeis, J., concurring).

IV. CONCLUSION

For the foregoing reasons, the trespass judgments against Opera-
tion Lifeline, Miss Schell, Miss Vaughn, Brooks, Cloer, Gautsch,
and
Daniel are vacated and remanded for a new trial consistent with
this
opinion. The trespass and RICO judgments against all the remaining
defendants are reversed.

On remand, the district court should decide whether it will retry
the
trespass judgments mentioned just above against Miss Schell, Miss
Vaughn, Brooks, Cloer, Gautsch, and Daniel, which were remanded
and not reversed, or whether it will dismiss those trespass claims
as
pendent state claims.

REVERSED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS

14
APPENDIX

The following summarizes all references to Operation Rescue con-
tained in the record at trial. It is organized first by the
testimony of
individual witnesses and then by trial exhibit number.

I. Witnesses' Testimony

A. Anne Schell. Early in Miss Schell's testimony, plaintiff's
attor-
ney asked whether Operation Lifeline is "an organization that wants
to educate people in Operation Rescue or what's known as a rescue."
J.A. at 180. She responded that the purpose of what she does "is
try
to educate people about what abortion really is." J.A. at 180.
Plain-
tiff's attorney also introduced questionnaires that Operation
Lifeline
had distributed to interested individuals (Pl.'s Exs. 35 and 36).
J.A.
at 181-83. The questionnaires contain a space allowing an
individual
to indicate interest in Operation Rescue. J.A. at 183, 464, 465.
The
attorney then asked whether Miss Schell knew what Operation Res-
cue is, and she answered, "That's a group of--I guess it's the
national. . . . What I know about Operation Rescue, the national
orga-
nization, is that they want to get the information out about
abortion.
It's not primarily to break laws." J.A. at 183-84.

The attorney subsequently introduced another document entitled
"The Rules of Rescue" and alleged that Operation Rescue produced
it (Pl.'s Ex. 49). J.A. at 186-88. Miss Schell said she was not
sure if
that was so and also denied that Operation Rescue and Operation
Lifeline are sister organizations. J.A. at 188. She explained that
Oper-
ation Lifeline is "just a local group of people." J.A. at 188. She
stated
that Operation Lifeline is not affiliated with anybody and does not
have a membership in or contribute funds to Operation Rescue,
although Operation Lifeline does obtain material from Operation
Res-
cue about abortion. J.A. at 188. She said it is possible that
Operation
Lifeline sends information to Operation Rescue but that she does
not
do so herself. J.A. at 188-89. She testified that she has never
been on
a conference call with Randall Terry or other members of Operation
Rescue but that she has heard "they" have them. J.A. at 189.

When the attorney introduced additional Operation Rescue material
discussing what to do during a rescue and in event of arrest (Pl.'s
Exs.

15
44 and 45), Miss Schell stated that the material was in Operation
Life-
line's files and that it was given to interested people. J.A. at
190-91.
She denied that it was sent for the purpose of duplicating and
distrib-
uting to Operation Lifeline members. J.A. at 191. She admitted that
Operation Rescue sent Operation Lifeline statistics on its National
Day of Rescue dated October 28, 1988 (Pl.'s Ex. 48). J.A. at
192-94.

Miss Schell further acknowledged that she had met Joseph Fore-
man, who is the southeast regional director for Operation Rescue,
and
that she had received a letter containing a check from the pastor
of
Southside Baptist Church to help toward the expenses of having
Fore-
man speak at a local church (Pl.'s Ex. 23). J.A. at 196, 200-01,
206.
She reiterated, however, that Operation Lifeline is not affiliated
with
Operation Rescue. J.A. at 206. She also stated that Foreman is not
a
director of Operation Lifeline and that Operation Lifeline invites
"people from a lot of different organizations to come and speak to
our
people." J.A. at 206. She claimed again that she did know of Opera-
tion Lifeline completing an Operation Rescue questionnaire and
send-
ing it back to Operation Rescue (Pl.'s Ex. 20). J.A. at 206-07. She
affirmed that she had received two editions of the "Rescue News-
Brief" (Pl.'s Exs. 40 and 41), but she explained, "A lot of people
get
those. I'm on the mailing list." J.A. at 208.

She later testified that she has traveled to Chicago and New York
and met with people from Operation Rescue there and stated that
Operation Rescue's headquarters are in Binghamton, New York. J.A.
at 212-13. She also said that she attended a protest organized by
Operation Rescue in Atlanta. J.A. at 214. She confirmed that Opera-
tion Lifeline was set up after she had been to Atlanta and learned
about Operation Rescue. J.A. at 214.

She did not remember ever referring to Operation Lifeline as a sis-
ter organization of Operation Rescue. J.A. at 213. She further
stated
that although Operation Lifeline and Operation Rescue do some of
the
same things they are not affiliated per se. J.A. at 213-14. She
asserted
that there is no membership in Operation Rescue. J.A. at 216. She
said she knows that Operation Rescue is a group, but she has never
filed any formal reports with them. J.A. at 218. Finally, she
admitted
that Operation Lifeline has reported on the activities of Operation
Rescue leaders in its newsletter (Pl.'s Ex. 15). J.A. at 219-20.

16
B. William Foster Gautsch. Gautsch testified that he had partici-
pated in an Operation Rescue rescue in New York City. J.A. at 225.
He said he is not a member of Operation Rescue. J.A. at 227.

C. Melvin Earl Daniel. Daniel stated that he had never signed a
membership card with Operation Rescue. J.A. at 248.

D. Joy Vaughn. Miss Vaughn testified that to her knowledge no
one affiliated with Operation Rescue was in Greenville County on
April 28, 1989 or in February 1989. J.A. at 260. She said that she
was
not affiliated with Operation Rescue, had never contributed to
them,
and was not on their mailing list. J.A. at 260.

E. Michael Clarence Cloer. There is no reference to Operation
Rescue in Dr. Cloer's testimony.

F. Dan Winston Brooks Jr. Brooks, Operation Lifeline's director,
acknowledged that he has attended Operation Rescue meetings, is
friends with Operation Rescue's Southeast Regional Director Joseph
Foreman, and has traveled to Operation Rescue headquarters in New
York. J.A. at 272-73. He said he has received copies of a rescue
newsbrief from Operation Rescue and has sent statistical
information
to the group (Pl.'s Ex. 11). J.A. at 284. He confirmed that he has
had
phone conferences with Operation Rescue leaders but asserted that
they were not about organizing rescues. J.A. at 287.

He denied that he ever had teleconferences with Operation Res-
cue's leader, Randall Terry, where the intent was to prevent physi-
cally individuals from obtaining an abortion or relating to
trespassing
intentionally on private property. J.A. at 289. He said he has dis-
cussed coordinating trespassing on private property with an
Operation
Rescue member to the extent that it might possibly occur, but not
as
an intention. J.A. at 289. He denied that Operation Rescue ever
sent
Operation Lifeline information telling them a date it wished for
them
to trespass on private property but affirmed that Operation Rescue
had
designated a day for rescuing. J.A. at 289-90.

He further stated that he had been arrested in Atlanta while
attend-
ing an Operation Rescue protest. J.A. at 294-95. He characterized
the

17
contact between Operation Lifeline and Operation Rescue as sporadic
rather than continuous. J.A. at 295. He affirmed that Operation
Life-
line periodically obtained information from and sent statistics to
Operation Rescue prior to April 28, July 5, and July 8, 1989. J.A.
at
295. He denied that Operation Rescue ever sent guidelines to Opera-
tion Lifeline on how to conduct a rescue. J.A. at 295.

G. Lorraine D. McGuire. There is no reference to Operation Res-
cue in Miss McGuire's testimony.

II. Trial Exhibits

A. Plaintiff's Exhibit 11--Operation Lifeline Newsletter Vol. 1,
No.
2 (J.A. at 442) (admitted into evidence J.A. at 235). Sets forth
statis-
tics on what happened nationally and locally for the National Day
of
Rescue. J.A. 442. Refers to Operation Rescue protest activity in
Pitts-
burgh, Pennsylvania. J.A. at 443.
B. Plaintiff's Exhibit 15--Lifeline Letter 1/10/89 (J.A. at 453)
(admitted into evidence J.A. at 211). Refers to activities of
Operation
Rescue leaders in New York on January 12-14. J.A. at 453.
Announces that Joseph Foreman will be in town on January 19 and
will give a speech on January 20. J.A. at 453. A drawing in the
mar-
gin beside information on a January 21 abortion protest depicts a
sign
stating "Operation Rescue is Coming." J.A. at 454.

C. Plaintiff's Exhibit 20--Blank Operation Rescue Questionnaire
(J.A. at 459) (admitted into evidence J.A. at 207). Asks local
rescue
leaders or organizers to send in information on lawsuits and any
other
concerns. J.A. at 459-60.

D. Plaintiff's Exhibit 21--Picketing Assignment for Operation Life-
line (J.A. at 461) (admitted into evidence J.A. at 199). Not dated.
Asks individuals to pray for "Lifeline, Operation Rescue, and
others
seeking to help in this fight." J.A. at 461.

E. Plaintiff's Exhibit 22--Lifeline Picket Pointers (J.A. at 462)
(admitted into evidence J.A. at 200). Not dated. A drawing in the
mar-
gin beside information on an unspecified abortion protest depicts
a
sign stating "Operation Rescue is Coming." J.A. at 462.

18
F. Plaintiff's Exhibit 23--Letter to Anne Schell from Dr. Walter
Hardford of Southside Baptist Church in Greenville, S.C. 1/13/19
(J.A. at 463) (admitted into evidence J.A. at 201). Contains a
check
to help toward the expenses of having Joseph Foreman. J.A. at 463.

G. Plaintiff's Exhibits 35 and 36--Lifeline Questionnaires Com-
pleted by Dayne Griffin and Mary Jane Freeman (J.A. at 464, 465)
(admitted into evidence J.A. at 182). One question asks whether the
individual is interested in Operation Rescue and is checked in the
affirmative on both forms. J.A. at 464, 465.

H. Plaintiff's Exhibit 37--Picketing Information for Lifeline (J.A.
at 466) (admitted into evidence J.A. at 185). Not dated. Asks
individ-
uals to pray for "Lifeline, Operation Rescue, and others seeking to
help in this fight." J.A. at 466.

I. Plaintiff's Exhibit 40--Operation Rescue NewsBrief April/May
1989 (J.A. at 467) (admitted into evidence J.A. at 209). Sent to
Dave
and Anne Schell. J.A. at 474. Contains no mention of South
Carolina,
Operation Lifeline, or the individuals named as RICO defendants. 1

J. Plaintiff's Exhibit 41--Operation Rescue NewsBrief June/July
1989 (J.A. at 475) (admitted into evidence J.A. at 209). Sent to
Dave
and Anne Schell. J.A. at 482. Contains no mention of South
Carolina,
Operation Lifeline, or the individuals named as RICO defendants.
K. Plaintiff's Exhibit 44--Information entitled "Sample-- Atlanta"
(includes flyer entitled "Operation Rescue Atlanta October 3-8")
(J.A.
at 484) (admitted into evidence J.A. at 192). Contains no mention
of
South Carolina, Operation Lifeline, or the individuals named as
RICO
defendants.

L. Plaintiff's Exhibit 45--Information entitled "Sample--Atlanta
(J.A. at 487) (admitted into evidence J.A. at 192). Provides
general
information on the criminal process and bonding procedure. J.A. at
487. A special note at the head of the document states, "Operation
_________________________________________________________________
1 The phrase "individuals named as RICO defendants" refers to Dan
Brooks, William Gautsch, Steven Lefemine, and Anne Schell.

19
Rescue cannot guarantee what the system will do. The following
statements are based upon our previous experience in Atlanta." J.A.
at 487.

M. Plaintiff's Exhibit 49--Rules of Rescue (J.A. at 490) (admitted
into evidence J.A. at 190). Discusses in general terms how to
behave
during a rescue, what to expect after arrest, and what participant
needs for prison. J.A. at 490-91. The only reference to Operation
Res-
cue appears in the third sentence of the document's third
paragraph:
"If you have not been assigned to do media interviews by Operation
Rescue, please direct these reporters to those assigned to do
inter-
views." J.A. at 490.

20