[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 20, 2002
No. 01-14305 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-00333 CR-T-30
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY BOWMAN, a.k.a. Taco, a.k.a. T,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 20, 2002)
Before BIRCH and COX, Circuit Judges, and GEORGE*, District Judge.
PER CURIAM:
*
Honorable Lloyd D. George, U.S. District Judge for the District of Nevada, sitting by
designation.
Harry Joseph Bowman, the international president of the Outlaws Motorcycle
Club, was convicted of racketeering, conspiracy to murder, and various drug and
firearm offenses. He was sentenced to life in prison. He appeals his convictions,
contending that the district court erred by refusing to disclose the juror’s names and
by refusing to redact the Outlaws’ Constitution to eliminate the whites-only
membership policy. He also challenges the sufficiency of the evidence. We affirm.
I. BACKGROUND
A. FACTS
1. The Outlaws Motorcycle Club
The Outlaws Motorcycle Club was founded at a bar just outside of Chicago in
1935. It has since grown to include 64 chapters in the United States and chapters in
eight other countries. The United States is divided into five regions, and each other
country is considered a region. Chapter presidents report to their regional president.
The regional presidents report to the international president.
Each chapter has a clubhouse. These clubhouses are used for “church
meetings,” parties, and privacy, and they are usually secured by concrete walls, steel
doors, razor wire, guard dogs, and video surveillance.
The Outlaws profess to be “1%ers,” or the one-percent of bikers who have
rejected societal norms and dedicated their lives to the club. Membership is limited
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to men who own American-made motorcycles of a particular size, and membership
dues are divided between the chapter and the region. A prospective member is first
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a “hang-around” or associate. He then becomes a probate and, finally, a patched
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member. August 20, 2002
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A patched member is entitled to wear a leather or CLERK
denim vest bearing an
Outlaws emblem, called “colors.” The patch is surrounded by chapter and club
membership information, called “rockers.” These emblems are purchased directly
from the international president. A patched member is also allowed to attend the
weekly church meetings, while associates, probates, and “old ladies” wait outside.
After being a member in good standing for a year, an Outlaw may wear a tattoo
depicting the Outlaws emblem.
An Outlaw’s tattoos can reflect other membership information as well. An
Outlaw who commits murder, attempts murder, or explodes a bomb on behalf of the
Outlaws is entitled to wear “lightning bolts,” a Nazi-style “SS” tattoo. An Outlaw
who has spent time in jail may receive an “LL” tattoo, which stands for “Lounge
Lizard.”
Membership in the Outlaws has its privileges. The Outlaws maintain a list of
Lounge Lizards, or incarcerated Outlaws, and collect money on their behalf. Chapters
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also encourage the Lounge Lizards’ “old ladies” and fellow Outlaws to send letters
to imprisoned members.
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While the Outlaws are allied with the Bandidos, a Southwestern motorcycle
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club, they have rivalries with several other clubs. Their dislike of Hell’s Angels is
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expressed in their slogans “AHAMD,” or “All CLERK
Hell’s Angels Must Die,” and
“ADIOS,” or “Angel’s Die in Outlaws States.” They also dislike the Pagans and the
Warlocks.
The Outlaws collect information on their rivalries with other clubs. They
primarily collect newspaper clippings regarding incidents with other clubs. On
occasion, though, an Outlaws member will bribe a law enforcement officer to obtain
information on the location of a rival club’s members. Outlaws also travel, at the
club’s direction, to the funerals of fellow bikers.
2. Harry Bowman
Harry “Taco” Bowman held various administrative positions within the
Outlaws Motorcycle Club. He served as a regional president and national vice-
president before becoming international president in 1984. Bowman conducted his
presidential activities from the Outlaws clubhouse in Detroit, while living in an
affluent Detroit suburb, sending his children to private schools, and driving an armor-
plated Cadillac. He served as international president for thirteen years, until 1997.
4
As international president, Bowman handled matters large and small, from setting the
Outlaws’ policies regarding other biker gangs to monitoring the activities of members.
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For most of Bowman’s presidency, Wayne “Joe Black” Hicks was Bowman’s
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right-hand man. In 1984, during the early part of his presidency,August 20, 2002
Bowman became
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concerned that a former Outlaw would reveal the whereabouts of an Outlaw fugitive.
To alleviate his concerns, Bowman asked Hicks, then the vice president of the Toledo
chapter, to kill the former Outlaw. Hicks was unable to complete this assignment
because he failed to locate the former Outlaw. Nevertheless, impressed by Hicks’s
dedication, Bowman transferred Hicks to Florida so Hicks could help revive the Fort
Lauderdale chapter. Hicks eventually became chapter president.
As chapter president, Hicks accompanied “Wild” Bill Pilgrim, Florida’s
regional president, to national meetings of regional presidents. At these meetings,
held every couple of months, the regional presidents discussed chapter membership,
the status of Lounge Lizards, the Outlaws’ community activities, and the activities of
rival clubs. Bowman, as international president, chaired these meetings, and the
regional presidents were obligated to seek his permission before taking action against
rival clubs.
Hicks became Florida’s regional president in 1990. At a meeting with
Bowman, Hicks reported that Alan “Greaser” Wolfe, an Outlaw, had testified before
5
a grand jury. Bowman, who distributed Outlaws tee shirts bearing the slogan
“snitches are a dying breed,” told Hicks to kick Wolfe out of the club and otherwise
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take care of him. Hicks and another member revoked Wolfe’s membership and beat
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him. August 20, 2002
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3. Murder of Raymond Chaffin CLERK
In the early 1990s, the Warlocks, another Florida club, allied with the Hell’s
Angels and began selling drugs on their behalf. This ignited a war between the
Outlaws and the Warlocks. When the Outlaws learned that Raymond “Bear” Chaffin,
a former member, was the leader of a Warlocks chapter in Edgewater, Bowman told
Hicks to find Chaffin and kill him. Hicks asked Houston Murphy, the Fort Lauderdale
president, to recommend an Outlaw who could gather intelligence on Chaffin.
Murphy recommended Alex “Dirt” Ankerich, an Outlaws probate. Ankerich traveled
to Edgewater and spent the night with Chaffin, who was unaware that Ankerich was
affiliated with the Outlaws.
At the next regional presidents meeting, Hicks told Bowman about Ankerich’s
adventure, and Bowman asked Hicks if Ankerich could be trusted to kill Chaffin.
Bowman then asked Ankerich if he was willing to do anything to become an Outlaw
and told Ankerich that he could earn some lightning bolts. Ultimately, Ankerich and
Murphy were directed to kill Chaffin and given a number to call when the murder was
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complete. Bowman and Hicks then agreed to present themselves in public to establish
an alibi.
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Murphy and Ankerich arrived in Edgewater on February 21, 1991. Murphy
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gave Ankerich a .22 pistol equipped with a silencer and told him to aim for Chaffin’s
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head to facilitate the kill. Ankerich went into Chaffin’s garage, shot Chaffin four
times in the back of the head, and ran away. Murphy reported the murder to Hicks,
and Hicks reported it to Bowman, who, in turn, complimented Hicks on his work.
Murphy also told Ankerich that he had earned his patch and lightning bolts.
Newspaper articles on Chaffin’s murder were mailed to other chapters.
4. Kidnapping of Irwin Nissen
In March 1992, during Daytona Bike Week, Irwin “Hitler” Nissen, a former
Outlaws probate, got into a fight with James “Moose” McLean, the president of the
Outlaws’ Atlanta chapter. Bowman heard about the fight and directed Murphy to
bring Nissen to him. Christopher “Slasher” Maiale, another Outlaw, placed a lock on
Nissen’s motorcycle to prevent him from leaving.
The next morning, Dennis “Dog” Hall, an Outlaw, brought Nissen to Bowman’s
motel room. Bowman greeted Nissen by punching him in the face. Murphy then held
Nissen while Bowman put a knife to Nissen’s ear and threatened to kill him if he ever
raised his hand against another Outlaws officer. Murphy and Maiale, at Bowman’s
7
direction, began beating and kicking Nissen until Bowman told them to get rid of him.
Murphy then proceeded to push Nissen off of a three-story balcony, which resulted
in severe injuries to Nissen, including a broken ankle. FILED
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5. Kidnapping of Kevin Talley August 20, 2002
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In 1993, a Florida Outlaws member named Kevin “Turbo” Talley was arrested
in Canada while visiting an Outlaws chapter there. Talley was to be deported to
Massachusetts, where a warrant for him was outstanding, but Canadian officials first
had him sign a statement admitting that the Outlaws were a criminal enterprise.
Incensed by Talley’s action, Bowman ordered Hicks to bring Talley to Detroit and
detain him there. Hicks called Talley in Massachusetts and told him to fly to Detroit.
Two Outlaws, “Broda” and “Bolt,” met Talley at the Detroit airport. They escorted
Talley to the Detroit clubhouse and locked him inside for several days.
Eventually, Bowman and Hicks arrived in Detroit and met with Talley. They
told Talley that they were upset that he signed the statement. After the meeting, Hicks
told Bowman that he would handle the problem. Hicks sent Talley to Florida, where
Hicks planned to beat up Talley and kick him out of the club. Believing he was in
danger, Talley resigned his membership upon his return to Florida.
6. 1994
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On New Year’s Eve 1993, Bowman called a meeting of all Outlaws at a party
in Fort Lauderdale. During the meeting, Bowman announced that the Outlaws would
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escalate their hostilities in 1994, showing no tolerance for Hell’s Angels or their
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sympathizers. In the following year, Outlaws nationwide conducted an increased
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number of attacks on their rival clubs and circulated newspaper articles documenting
these attacks.
a. The War Wagon Incident
In June 1994, numerous Outlaws descended on Gary, Indiana, to attend an
event at a local speedway. This event was also customarily attended by the Invaders,
another motorcycle club. The Outlaws suspected that the Invaders were affiliated with
the Hell’s Angels.
On the night before the event, Bowman met with attending Outlaw presidents.
Randy “Mad” Yager, the president of the Gary Outlaws, also held a meeting with the
attending Outlaws and announced that they were to attack the Invaders at the
speedway. To carry out this attack, the Outlaws planned to use a “war wagon,” or a
vehicle modified with steel plating and several gun ports. The war wagon was
equipped with firearms and other weapons to facilitate the attack.
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The Outlaws drove the war wagon to the speedway, but no Invaders ever
arrived. After the war wagon left, it was stopped by Gary police officers. The officers
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seized firearms, ammunition, and smoke grenades from inside the war wagon.
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b. Hell’s Henchmen August 20, 2002
THOMAS K. KAHN
While visiting Chicago CLERK
in the spring of 1994, Bowman complained about the
presence of Hell’s Henchmen in the area and the failure of the Chicago chapter
president, Pete “Greased Lightning” Rogers, to do anything about it. Rogers, it turns
out, was reluctant to take action for fear that it might draw the attention of federal
authorities. Bowman decided to take matters into his own hands by ordering Hicks
and Walter “Buffalo Wally” Posnjak to surveil the Hell’s Henchmen clubhouse.
Murphy also participated in this surveillance and, on one occasion, observed Hell’s
Angels memorabilia in the clubhouse. In September, Carl “Jay” Warneke, Yager, and
another Outlaw met with Bowman at his Detroit residence, and Bowman gave them
permission to bomb the clubhouse.
Then, in November, Outlaws Kevin “Spike” O’Neill and Raymond “Shemp”
Morgan Jr. set off a car bomb outside of the Hell’s Henchmen clubhouse. The bomb
damaged nearby structures, parked cars, and commuters but failed to destroy the
clubhouse. The Chicago Outlaws finished the job in December by dousing the
clubhouse in gasoline and burning it down. The clubhouse was condemned and put
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up for sale, and the Outlaws celebrated by visiting the site and giving it “the one-
finger salute.”
c. Warlocks FILED
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Bowman, in 1994, also asked the Outlaws to do anything they could to destroy
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the CLERK
Warlocks. Hicks asked Stephen “DK” Lemunyon, a Daytona Outlaw, to
determine how best to destroy the Warlocks clubhouse in Orlando. Lemunyon and
Steve “Stevo” Hilton, another Outlaw, constructed a bomb, and Hicks kept Bowman
informed of the operation. Meanwhile, several Daytona Outlaws kept an eye on the
clubhouse.
Lemunyon, Hilton, and Louis Musher detonated the bomb in October 1994.
Bowman told the Florida Outlaws that he was proud of their work. Bowman also told
Hicks to keep up the good work and to continue to watch and kill the Warlocks.
A few months later, Lemunyon, Musher, Hilton, and Robert Gunther joined
forces to plan another firebombing, this time of the Warlocks clubhouse in Brevard
County. Again, Outlaws watched the clubhouse while Lemunyon constructed a bomb
identical to the one used in Orlando. The plan was thwarted, however, when
authorities arrested the Daytona Outlaws and, during a search of Lemunyon’s
residence, seized the firebomb.
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d. Fifth Chapter Motorcycle Club
The Fifth Chapter Motorcycle Club was a family-oriented club made up of men
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and women who were recovering from substance-abuse problems. They sought to be
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neutral, maintaining good relationships with all clubs, and the Outlaws allowed them
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to exist in Florida, which was generally considered Outlaw turf. But the Outlaws also
targeted the FCMC in 1994.
In September of that year, a Hell’s Angel named Michael Quale was killed in
an altercation with some Outlaws. At Quale’s funeral, a photographer took a picture
of an FCMC member hugging a Hell’s Angel. Bowman believed that this hug was
disrespectful to the Outlaws because one of their own, “Buffalo Wally” Posnjak, had
also been killed in the altercation. Bowman showed the photograph to Hicks and
ordered Hicks to shut down the FCMC in Florida.
In December, Lemunyon invited members of the FCMC to the Outlaws
clubhouse in Orlando. About fifteen members of the FCMC accepted the invitation
and rode to Orlando. As they entered the compound, the FCMC members were
searched by Outlaws.
Once inside, the members were seated at two picnics tables and surrounded by
armed Outlaws. Lemunyon then announced that there was a problem, displayed the
newspaper photograph, and began beating FCMC national president Mike Malone
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with a flashlight while the other FCMC members were held at gunpoint. Lemunyon
told the FCMC that they could no longer exist and ordered them to remove any
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clothing that bore the FCMC logo. After the FCMC members complied with
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Lemunyon’s instruction, the Outlaws began beating them as well.August 20, 2002
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After the beatings, the Outlaws allowed the FCMC members to wash
themselves. They were told to return home without congregating or visiting hospitals.
Once home, Lemunyon instructed, the FCMC members were to mail all of their
FCMC memorabilia to the Outlaws. The FCMC members returned to their
motorcycles to find that many of their personal belongings had been stolen.
e. Murder of Donald Fogg
At a 1994 meeting in Chicago, Bowman told Hicks and others that an Outlaw
had become a snitch. Bowman said that the snitch would be killed and explained that
the killing would be made to look like an enemy had done it. He also said that the
murdered snitch would be given an Outlaw funeral.
A few weeks later, authorities found the body of Donald Fogg, an Outlaw, lying
face down in the snow. Fogg had been shot in the head in a field near an Outlaws
clubhouse. Fogg received an Outlaw funeral. At the funeral, a story was circulated
that a policeman interested in Fogg’s girlfriend had shot him, but none of the Outlaws
13
seemed interested in revenge. Bowman later acknowledged that Fogg was the snitch
he had targeted. Fogg, it turned out, had been talking to the police.
f. Hell’s Angels FILED
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At a meeting in 1994, Outlaws regional president “Mad Mike” Markham was
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criticized for failing to take action against the Hell’s Angels. Markham, however, was
reluctant to take on the Hell’s Angels because the two clubs had peacefully coexisted
in his region. An Outlaw from Markham’s region, Harold “Bullwinkle” Brewington,
suggested an alternative: attack the Hell’s Angels in California. Markham liked the
idea and told Brewington that he would bring it up at the next regional presidents
meeting.
At a meeting near the end of 1994, Bowman, apparently adopting Markham’s
idea, announced that the Outlaws would take the war against the Hell’s Angels to
California. Bowman planned to send a group of trustworthy Outlaws to California to
conduct surveillance on, and possibly assassinate, either Sonny Barger, the
international president of the Hell’s Angels, or George Christie, a national officer.
Ultimately, Murphy and Brewington were selected for the mission, but Murphy,
uncomfortable with Brewington, went to California alone.
Murphy stayed in Ventura, California, for four days, locating and mapping out
Christie’s residence. He returned to Florida, but, after the Daytona Outlaws were
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arrested on federal RICO charges, Bowman directed Murphy to bring the map to
Tennessee. Murphy presented his report at a meeting in Tennessee, and Bowman
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thanked him for his service. Eventually, Bowman dispatched other Outlaws to follow
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up on Murphy’s findings, but Christie was never harmed. August 20, 2002
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7. Other Activities CLERK
In addition to his managerial activities, Bowman also, at various times, used and
distributed illegal drugs. He was generally accompanied by a bodyguard who carried
a gun for him.
Bowman was indicted in 1997. The indictment was unsealed soon thereafter,
but the FBI was unable to serve the indictment at Bowman’s residence. Bowman then
became a fugitive on the FBI’s ten-most-wanted list. He was finally captured in 1999,
while visiting his family in Sterling Heights, Michigan.
B. PROCEDURAL HISTORY
1. The Indictment
Bowman’s indictment includes ten counts. Four counts allege violations of the
Racketeer Influenced and Corrupt Organizations Act (“RICO”). Count One alleges
that Bowman conspired to conduct and participate in the affairs of an enterprise
affecting interstate commerce through a pattern of racketeering, in violation of 18
U.S.C. § 1962(d). This count includes seventeen alleged racketeering acts. Count
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Two alleges that Bowman in fact conducted or participated in these affairs, in
violation of 18 U.S.C. § 1962(c). Count Four charges Bowman with threatening and
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assaulting members of the Fifth Chapter Motorcycle Club to maintain and increase his
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position in the RICO enterprise, in violation of 18 U.S.C. § 1959(a)(3)20, 2002
August and (a)(4).
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Count Five charges him with maintaining and increasing his position by conspiring
to murder members of the Hell’s Angels Motorcycle Club, in violation of 18 U.S.C.
§ 1959(a)(5).
Four counts charge Bowman with drug offenses. Count Three charges Bowman
with conspiracy to possess with intent to distribute opium, cocaine, methamphetamine,
marijuana, and Valium, in violation of 21 U.S.C. § 846. Count Six charges him with
distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Count Seven
charges him with distributing opium, and Count Eight charges him with distributing
Valium.
Count Nine charges Bowman with destroying the Warlocks clubhouse in
Orlando, in violation of 18 U.S.C. § 844(i). Count Ten charges Bowman, a convicted
felon, with possessing a .45 caliber semiautomatic pistol.
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2. Empaneling the Jury
Bowman proceeded to trial. Before empaneling the jury, the court sua sponte
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decided to keep the jury innominate1 by withholding their names, addresses, and
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places of employment. The court explained its decision in a written order,20, 2002prior
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incidents of Outlaws attempting to interfere with judicial proceedings. (R.1-63.)
Bowman objected, but the jurors remained innominate throughout the trial.
3. Trial and Motions for Judgment of Acquittal
At the close of the Government’s case, Bowman moved for judgment of
acquittal on all counts. The court granted the motion in part, entering judgment of
acquittal on Count Seven and on two Racketeering Acts, numbers Five and Six. The
court otherwise denied the motion. Bowman did not renew his motion at the close of
all of the evidence.
The jury found Bowman guilty of Counts One through Six, Eight, and Ten and
not guilty on Count Nine. The jury also found proved Racketeering Acts Two through
Four and Seven through Seventeen. Bowman made a post-verdict motion for
judgment of acquittal as to Count Four and Racketeering Acts Two, Eight, Thirteen,
1
We will refer to the jury as “innominate” rather than “anonymous” because, after a
thorough voir dire, the parties knew everything about the jurors except their names. See United
States v. Carpa, 271 F.3d 962, 963 n.1 (11th Cir. 2001).
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and Fifteen. (R.2-98.) The court granted the motion as to Racketeering Act Two but
otherwise denied it.
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Bowman stands convicted on Counts One, Two, Three, Four, Five, Six, Eight,
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and Ten. He also stands convicted of thirteen racketeering acts: Three is20, 2002
August the murder
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of Raymond Chaffin; Four is the kidnapping of Irwin Nissen; Seven is CLERK
the distribution
of Valium; Eight is the kidnapping of Kevin Talley; Nine is the conspiracy to murder
members of other motorcycle clubs; Ten is the bombing of the Warlocks clubhouse;
Eleven is the bombing of the Hell’s Henchmen clubhouse; Twelve is the conspiracy
to destroy the Warlocks clubhouse in Brevard County; Thirteen is the assault on the
Fifth Chapter Motorcycle Club; Fourteen is the conspiracy to murder members of the
Warlocks; Fifteen is the murder of Don Fogg; Sixteen is the conspiracy to murder
members of the Hell’s Angels; and Seventeen is the distribution of various illegal
substances.
4. Sentencing
Bowman was sentenced to concurrent terms of life imprisonment on Counts
One and Two. He received twenty years each on Counts Three, Four, and Six, ten
years each on Counts Five and Ten, and three years on Count Eight. These sentences
were to run concurrently with his life sentence.
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II. ISSUES ON APPEAL
Bowman raises three issues on appeal: (1) Whether the district court erred by
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denying his motion for judgment of acquittal based on insufficiency of the evidence;
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(2) Whether the district court abused its discretion by empaneling an innominate jury;
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and (3) Whether the district court abused its discretion by refusing to redact the
whites-only statement in the Outlaws Constitution.
III. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Bowman made a post-verdict motion for judgment of acquittal, arguing that the
evidence was not sufficient to support the jury’s guilty verdicts. The district court
denied the motion, and Bowman appeals. We review the denial of a motion for
judgment of acquittal de novo. United States v. Perez-Tosta, 36 F.3d 1552, 1556
(11th Cir. 1994). When the motion raises a challenge to the sufficiency of the
evidence, we review the sufficiency of the evidence de novo, drawing all reasonable
inferences in the Government’s favor. Id.2 A review of the record indicates that the
2
The Government argues that, because the post-verdict motion challenged only a few
counts of conviction, we should review the unchallenged counts for “a manifest miscarriage of
justice.” United States v. Adams, 91 F.3d 114, 116 (11th Cir. 1996). In light of our conclusion
that the evidence was sufficient on all counts, we need not be detained in a search for the
appropriate standard of review.
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evidence against Bowman was sufficient on all counts of conviction, and only Count
Four and Racketeering Acts Eight, Thirteen, and Fifteen warrant discussion.
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Count Four and Racketeering Act Thirteen charge Bowman with ordering the
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assault on members of the Fifth Chapter Motorcycle Club. In support of the count,
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the Government offered the testimony of Hicks, who was, for a time, Bowman’s right-
hand man. Hicks testified that, after Bowman saw a picture in the newspaper of an
FCMC member hugging a Hell’s Angel, Bowman was enraged and told Hicks to
return to Florida. (R.15 at 121-22.) Upon Hicks’s return to Florida, he was to meet
with the FCMC, shove the newspaper in the president’s mouth, and shut down the
FCMC. (R.15 at 122.) Hicks understood “shut down” to mean the assaults and
threats of violence that were issued to the FCMC. (R.15 at 124.) Although the assault
was ultimately carried out by Lemunyon rather than Hicks, the jury could infer that
Lemunyon was following Hicks’s, and thus Bowman’s, order. This evidence was
sufficient to support the jury’s verdict on this count.
Racketeering Act Eight accuses Bowman of participating in the kidnapping of
Kevin Talley. Bowman argues that there is no evidence indicating that he ordered the
Outlaws to restrain Talley against his will. However, Murphy testified that Bowman
issued an order that Talley be brought to Detroit and locked in the Detroit clubhouse.
(R.22 at 100.) Hicks and Talley also testified that Talley was indeed brought to the
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Detroit clubhouse and was not free to leave. (R.15 at 79; R.24 at 75-76.) This
testimony is sufficient to support Bowman’s conviction.
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Racketeering Act Fifteen concerns the murder of Don Fogg. Hicks testified that
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Bowman, at a presidents meeting, reported that there was a snitch among them and
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that the snitch would be killed. (R.15 at 124.) The murder would be staged to appear
as if an enemy had committed it, and the Outlaws would hold a regular Outlaws
funeral. (R.15 at 124-25.) Fogg was murdered, a story was circulated that an enemy
had done it, and a regular funeral was held. (R.15 at 125-26.) Later, Bowman told
Hicks that Fogg was the snitch he had mentioned at the meeting. (R.15 at 128.) The
jury could reasonably infer from this evidence that Bowman ordered Fogg’s murder.
Because the evidence was sufficient on all counts of conviction, we find
Bowman’s challenge to the district court’s denial of his motion for judgment of
acquittal to be without merit.
B. INNOMINATE JURY
The district court sua sponte decided to empanel an innominate jury and entered
an order detailing its reasons. Bowman objected to the use of an innominate jury and,
on appeal, argues that the district court abused its discretion by using one in this case.
The district court’s decision to empanel an innominate jury is reviewed for an abuse
of discretion. United States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994).
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The district court has the discretion to empanel an innominate jury upon a
showing of a combination of several factors, including (1) the defendant’s
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involvement in organized crime, (2) the defendant’s participation in a group with the
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capacity to harm jurors, (3) the defendant’s past attempts to interfere with20, 2002
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process, (4) the potential that, if convicted, the defendant will suffer a lengthy
incarceration and substantial monetary penalties, and (5) extensive publicity that
enhances the possibility that jurors’ names may become public and expose them to
intimidation or harassment. Ross, 33 F.3d at 1520.
In this case, all of the Ross factors were present to some degree. Bowman was
accused of being the international president of a motorcycle gang that had a history
of violent conduct. The Outlaws, on several occasions, interfered with the judicial
process by seeking to intimidate witnesses into not testifying against them and by
observing and reporting on the testimony that witnesses did give. Bowman himself
was accused of kidnapping Talley and murdering Don Fogg to punish them for their
communication with law-enforcement authorities. Furthermore, Bowman was facing
a life sentence, and his capture and trial had already garnered a significant amount of
publicity. While Bowman argues that the Outlaws had no history of juror
intimidation, jurors had been accosted by members of the news media in prior trials
22
involving the Outlaws. Under these circumstances, the district court did not abuse its
discretion by empaneling an innominate jury.
Bowman argues that the district court nevertheless abused itsFILED
discretion by
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ELEVENTH CIRCUIT
failing to give the jury a special instruction regarding the unusual voir-dire procedure.
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THOMAS K. KAHN
CLERK
Bowman is correct that the district court gave such an instruction in Ross and that the
instruction was said to have eliminated any potential prejudice that the procedure
might have caused in that case. See Ross, 33 F.3d at 1521-22. While the jury may
have benefitted from a similar instruction in this case, the district court’s failure to
give the instruction does not warrant reversal. Because Bowman did not request such
an instruction, he waived any right he had to the instruction and may not be heard to
complain now absent plain error. See United States v. Zlatogur, 271 F.3d 1025, 1030
(11th Cir. 2001) (explaining that failure to request instruction precludes reversal
absent plain error which “significantly and substantially” prejudices defendant);
United States v. Vario, 943 F.2d 236, 241 (2d Cir. 1991) (discussing waiver of
instruction on anonymous jury where defendant failed to object to charge given). In
any event, the evidence against Bowman was overwhelming, and the lack of an
instruction did not affect his substantial rights.
23
C. REDACTION OF THE WHITES-ONLY POLICY
The Outlaws Constitution states that only white males may be members.
During its search of various Outlaws clubhouses, the FBI seized copies FILEDOutlaws
of the
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Constitution, four of which contained this provision. In the first indictment against
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THOMAS K. KAHN
CLERK
Bowman, the Government included the whites-only policy among its allegations. The
court struck this allegation as irrelevant. At trial, the Government introduced the
seized Constitutions, attempting to show a unity of purpose among the various
Outlaws chapters. Bowman objected to the documents and asked the court to strike
the whites-only policy from them. (R.10 at 174-75 & 202; R.12 at 12; R.29 at 6.) The
court refused to do so. When the Government published the documents on an
overhead projector at trial, the whites-only policy was visible to the jury. (R.10 at
177.) Bowman argues on appeal that the district court should have stricken the
whites-only policy and that its admission was inflammatory and prejudicial. We
review the district court’s evidentiary rulings for an abuse of discretion. United States
v. Mills, 138 F.3d 928, 935 (11th Cir. 1998).
Bowman mounts his attack under Federal Rule of Evidence 403, which states
that, “[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
24
presentation of cumulative evidence.” Fed. R. Evid. 403. Since Bowman was not
charged with any racially-motivated crimes, his allegiance to a racist organization is
not relevant to his guilt or innocence in this case. Still, the repetition of FILED
the policy was
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ELEVENTH CIRCUIT
not entirely irrelevant since it tended to show the uniformity of the Outlaws enterprise.
August 20, 2002
THOMAS K. KAHN
But there was other evidence of this uniformity, as many of theCLERK constitutional
provisions were repeated; each of the constitutions for instance, included the
requirements that Outlaws must be twenty-one years-old and own their own
motorcycles. Because it was cumulative, the evidence of the whites-only policy had
limited probative value.
This limited probative value was, in our view, outweighed by the danger of
unfair prejudice. The uneasy racial history of criminal law in the United States has
yielded a simple rule-of-thumb: “There is no place in a criminal prosecution for
gratuitous references to race, especially when a defendant’s life hangs in the balance.
Elementary concepts of equal protection and due process alike forbid a prosecutor to
seek to procure a verdict on the basis of racial animosity.” Smith v. Farley, 59 F.3d
659, 663 (7th Cir. 1995). In this case, the Government, whose interest “is not that it
shall win a case, but that justice shall be done,” Berger v. United States, 295 U.S. 78,
88, 55 S. Ct. 629, 633 (1935), should have scrupulously avoided the possibility that
the jury’s verdict might be clouded by racial issues. Furthermore, the court could
25
have, and should have, prevented the injection of racial issues by simply redacting the
whites-only policy.
FILED
Nevertheless, the whites-only policy comprised but a single phrase in a single
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ELEVENTH CIRCUIT
sentence on each of four documents admitted into evidence. Over the course of the
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THOMAS K. KAHN
CLERK
trial, these four phrases became buried in the mountain of documentary evidence
against Bowman, which included thousands of documents and photographs.
Furthermore, over fifty witnesses testified regarding Bowman’s criminal activity.
Since the evidence against Bowman was overwhelming, and the whites-only policy
was but a brief flicker in Bowman’s month-long trial, the admission of the policy,
while error, did not affect Bowman’s substantial rights. See Fed. R. Crim. P. 52.
IV. CONCLUSION
Because we find no reversible error in Bowman’s convictions, his convictions
are affirmed.
AFFIRMED.
26
United States v. Harry Bowman
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2002-08-20
Citations: 302 F.3d 1228
Copy CitationsCombined Opinion