                  UNITED STATES COURT OF APPEALS

                          FOR THE EIGHTH CIRCUIT



                                     No. 97-3407



United States of America,                     *
                                              *
             Appellee,                        *
                                              *      Appeal from the United
             v.                               *      States District Court for
                                              *      the Eastern District of
Roger David Rolett,                           *      Arkansas
                                              *
             Appellant.                       *



                            Submitted:   February 10, 1998
                               Filed:    July 30, 1998


Before RICHARD S. ARNOLD, 1 Chief Judge, HANSEN, Circuit Judge, and
LIMBAUGH,2 District Judge.




      1
        The Hon. Richard S. Arnold stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on April 17,
1998. He has been succeeded by the Hon. Pasco M. Bowman II.
      2
        The Hon. Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri, sitting by designation.
LIMBAUGH, District Judge




       Appellant was charged with conspiracy to commit a murder in aid of
racketeering in violation of 18 U.S.C. § 1959(a)(5) in Count I of the indictment and in
Count II was charged with murder in aid of racketeering in violation of 18 U.S.C. §
1959(a)(1)and 2. A jury convicted appellant of Count I, the conspiracy count, and
found appellant not guilty of Count II, the murder count.

       On this appeal, appellant raises three assignments of error. The first is that the
district court3 erroneously admitted Rule 404(b) evidence. Second, the district court
erroneously denied motions for judgment of acquittal and for a new trial because of
insufficient evidence to support the verdict as to Count I. The third assignment is that
the district court should have sustained the motion for judgment of acquittal as the
verdict of guilty on Count I was inconsistent with the verdict of not guilty as to Count
II. We affirm.

       Appellant and Charles Edwin “Butch” Davidson were both charged in Counts
I and II of a superseding indictment. Before trial, the government dismissed Davidson
pursuant to an agreement whereby he would cooperate and testify against appellant.

      At the trial, the parties stipulated that there was in existence, from February 1989
to February 1995, a racketeering criminal enterprise directed by Davidson. The
enterprise was engaged in auto theft, arson, insurance fraud, drug distribution,
intimidation and murder in and around White County, Arkansas, and the activities of
the enterprise affected interstate commerce.

      Davidson testified extensively concerning the racketeering, criminal enterprise


      3
          The Hon. George Howard, Jr., United States District Judge for the Eastern
District of Arkansas.
and the circumstances surrounding the murder of Marlene Holt. The body of Holt has
never been found.

      Davidson also stated he had previously been convicted of a RICO charge and
for murder for hire of Daryl Cooperwood. His sentence in these cases was life
imprisonment without possibility of release, plus an additional term of 999 months
incarceration.

        During his testimony, Davidson stated that he had been running a body shop and
car lot and was involved in stolen trucks. He would take the trucks apart, disassemble
them and use the parts on wrecks, switching vehicle identification numbers. He labeled
this operation as a chop-shop enterprise. Davidson stated that his stepson, Tim
Scarbrough, and appellant would steal trucks for him as a part of his chop-shop
operation. Davidson also testified that he would operate as a fence by buying stolen
property and reselling it. He stated that Tim Scarbrough and appellant were
burglarizing houses and then bringing him stolen property to sell. This included TVs,
VCRs, microwaves and guns.

        At that point in Davidson’s testimony, defendant moved for a mistrial because
of the introduction in evidence of the thefts and burglaries. The argument was that this
evidence was inappropriate in a murder trial or in a charge of conspiracy to commit
murder in aid of racketeering. The trial court considered the evidence as that
contemplated by Rule 404(b) of the Federal Rules of Evidence. The request for a
mistrial was denied but the court elected to give a cautionary instruction. The court
told the jury that Davidson had testified about certain acts of conduct involving
appellant, that is stealing property, breaking into homes and delivering guns and
television sets to Davidson. The court stated that the evidence was being received for
a limited purpose and it was not being received to show the character of appellant or
to show that appellant acted in accordance with any alleged characterization, but that
it was being received to show motivation, intent, knowledge, mode and manner of

                                          -3-
operation, the absence of mistake or accident or the relationship between the appellant
and Davidson. The court told the jury that the members could receive this information
for those limited purposes only, and not to pinpoint the character of appellant.

        Davidson later testified about events involving Tim Scarbrough buying marijuana
from an undercover officer. Davidson stated that Scarbrough attempted to steal some
of the evidence of the marijuana offense. He stated that Scarbrough broke into the
Drug Task Force office in Searcy, Arkansas and stole all of the files and records. He
stated that appellant was with him at the time of the theft. At that point, appellant again
moved for a mistrial and the court denied it and offered again to give the same
cautionary instruction given earlier as to the Rule 404(b) evidence. Counsel for
appellant did not feel it was necessary to restate the cautionary instruction, so none was
given and the request for mistrial was denied.

      Appellant argues that the introduction of this evidence violated Rule 404(b) of
the Federal Rules of Evidence and that the district court, therefore, erred in denying the
motion for a mistrial. Appellant urges the court to find that the other acts allegedly
performed by him were not similar in kind to the acts charged and the prejudice of this
testimony far outweighed the probative value of the evidence.

       Although both parties treated the evidence of other acts as Rule 404(b) evidence,
this court finds that such evidence is “intrinsic evidence” which is inextricably
intertwined as “an integral part of the immediate context of the crime charged.” U.S.
v. McGuire, 45 F.3d 1177, 1188 (8th Cir. 1995). U.S. v. Williams, 95 F.3d 723, 730,
731 (8th Cir. 1996).

       The superseding indictment as to Count 1 sets out as an introduction that from
in or about March 3, 1992 to in or about February 1995, Davidson and others
constituted an enterprise as defined in 18 U.S.C. § 1959(b)(2); that is, a group of
individuals associated in fact, which engaged in, and the activities of which affected

                                           -4-
interstate commerce. The purposes of the enterprise included enriching the members
of the enterprise through, among other things, drug trafficking, arson, auto theft and
fraud, and preserving and protecting the power of the enterprise through use of
intimidation, threats, violence, arson and murder. It was alleged that the enterprise
employed people, known and unknown to the Grand Jury, to carry out acts for
Davidson. The enterprise, “called the Davidson Enterprise” through its members and
associates engaged in racketeering activity as defined in 18 U.S.C. § 1959(b)(1) and
1961(1), that is, acts involving murder and arson in violation of the Arkansas Criminal
Code and acts indictable under 18 U.S.C. § 1958 and other sections. The indictment
charged in addition that in or about July 1992 through September 1992 in the Eastern
District of Arkansas, Davidson and appellant conspired with each other as
consideration for the receipt of, and as consideration for a promise and agreement to
pay something of pecuniary value from the Davidson Enterprise, and for the purpose
of maintaining and increasing their position in the enterprise, which was engaged in
racketeering activity, to cause the death of Marlene Holt by way of murder, in violation
of Arkansas laws, thereby violating 18 U.S.C. § 1959(a)(5).

      Although the parties stipulated that there was, in existence, a racketeering,
criminal enterprise directed by Davidson which was engaged in auto theft, arson,
insurance fraud, drug distribution, intimidation and murder it was relevant for the
government to offer evidence that appellant was involved, not only in the conspiracy
to cause the death of Marlene Holt, but to offer proof that appellant, himself, was a
member of the conspiracy and of the racketeering enterprise.

       Section 1959(a) of 18 U.S.C. provides that “whoever as consideration for the
receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary
value from an enterprise engaged in racketeering activity, or for the purpose of gaining
entrance to or maintaining or increasing position in an enterprise engaged in
racketeering activity, murders, . . . any individual in violation of the laws of any state
or the United States or attempts or conspires so to do, shall be punished . . .”

                                           -5-
       In order to prove its case against appellant, the government had to prove that
there was an enterprise engaged in racketeering activity and that the enterprise gave or
promised consideration to appellant and Davidson to commit a murder, or to conspire
to commit a murder. While it was not necessary to prove that appellant was himself
a part of the enterprise engaged in racketeering activity, it was certainly relevant to
produce evidence suggesting that he and Davidson worked together in the enterprise
engaged in racketeering activity as alleged in the indictment. Racketeering activity,
among other things, includes trafficking in certain motor vehicle or motor vehicle parts.
18 U.S.C. § 1961. This includes obliterating, tampering or altering motor vehicles, or
motor vehicle parts, including engaging in chop-shop operations. 18 U.S.C. § 2321 and
§ 2322.

       The evidence that appellant and Tim Scarbrough were engaged with Davidson
in a chop-shop operation, and that appellant was stealing materials to further that
operation was certainly relevant to prove that there was an enterprise engaged in
racketeering activity and that this enterprise provided the consideration to appellant and
Davidson to conspire to commit murder. The stipulation of the parties that there was
an enterprise engaged in racketeering activity would not preclude the government from
introducing further evidence concerning the nature and extent of the enterprise and the
nature and extent of the racketeering activity.

       Since the evidence of the other acts is intrinsic evidence which is inextricably
intertwined as an integral part of the immediate context of the crime charged, it was not
error for the trial judge to allow this evidence to come before the jury, and to refuse the
request for a mistrial.

       Even if the other acts evidence was not intrinsic evidence, inextricably
intertwined as an integral part of the immediate context of the crime charged, it was
properly admitted as Rule 404(b) evidence.


                                           -6-
      The test for admission of other act evidence under Rule 404(b) requires a
showing that: 1. The evidence of the other act must be relevant to a material issue; 2.
The other act must be similar in kind and reasonably close in time to the crime charged;
3. The other act must be proved by a preponderance of the evidence; and, 4. The
probative value of the evidence must not be outweighed by its prejudice. U.S. v.
Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995).

       Evidence of appellant’s association with Davidson in the chop-shop operation
and stealing of vehicles as a part of that activity was relevant to a material issue in the
case in that the racketeering activity enterprise had to be established in order to have
some entity to provide consideration to those accused of conspiring to cause the death
of Marlene Holt. All of appellant’s illegal activities with Davidson helped to establish
the existence of the enterprise which was engaged in racketeering activity and
appellant’s association with that enterprise.

       Although the other acts complained of were not similar to murder or a conspiracy
to commit murder, they were a part of the enterprise which was engaged in racketeering
activity. There is no dispute that they were close in time to the crime charged.

      Although Davidson was a convicted felon, there was no reason to dispute his
testimony about the other acts of appellant and there was no evidence to suggest that
Davidson had misspoken when he described the other acts.

     Finally, the court determines that the probative value of the other acts evidence
was more probative than prejudicial.

        The trial court is vested with broad discretion in determining whether to admit
wrongful act evidence. This court has consistently viewed Rule 404(b) as one of
inclusion, permitting admission of other crimes, wrongs or bad acts material to an issue
at trial unless the evidence tends to prove only the defendant’s criminal disposition.


                                           -7-
Shoffner, 71 F.3d at 1432, Arcoren v. U.S., 929 F.2d 1235, 1243 (8th Cir. 1991). The
trial court gave a proper Rule 404(b) instruction at the time the evidence was elicited
and there was ample independent evidence to support the verdict. We find the district
court did not abuse its discretion in admitting the bad acts evidence. U.S. v. Mosby,
101 F.3d 1278, 1282 (8th Cir. 1996).

       Appellant next contends that there was insufficient evidence to convict him of
conspiracy to commit murder in aid of racketeering. On review of the conviction, we
must view the evidence in the light most favorable to the government and give the
government the benefit of all reasonable inferences. The charge can be proved by
direct evidence or wholly by circumstantial evidence and inference or by both.
Williams, 95 F.3d at 732. If any rational trier of fact could have found guilt beyond a
reasonable doubt, this Court must affirm. U.S. v. Searing, 984 F.2d 960, 963, 964 (8th
Cir. 1993).

        Although the body of Marlene Holt has never been found, various witnesses
testified that appellant told them he had killed her. This evidence came from Davidson,
Paula Scarbrough, Bill Scarbrough, Tim Scarbrough and Melvin Redman. Holt’s
mother, brother and others testified that they have not seen Holt since Labor Day of
1992. In August of 1992, Davidson and Holt were living together at Davidson’s home.
Davidson voluntarily entered a residential facility for psychiatric and addiction
problems in North Little Rock, Arkansas sometime in late August or early September
of 1992. Before Davidson left for the hospital, he told appellant to keep an eye on his
place while he was gone. Other witnesses, while visiting Davidson, informed him
about shootings, partying and a lot of traffic going on at his house. Thereafter,
Davidson told appellant to get rid of his problem because Holt was strung out on drugs,
was acting erratic and Davidson was concerned that Holt might tell about his
involvement in a murder-for-hire. Davidson and appellant discussed overdosing Holt,
and Davidson promised to give a Chevrolet truck to appellant for taking care of the
problem. Later, appellant told Davidson that he had killed Holt as requested.


                                         -8-
       Melvin Redman, a friend of Davidson, testified that appellant told him he had
taken care of Marlene Holt for Davidson and that Davidson owed him a truck for the
deal he had done. Tim Scarbrough also testified that appellant said Davidson was to
give him a truck for killing Holt.

        The jurors had sufficient evidence to support the verdict of the jury as to Count
I of the indictment. The agreement between Davidson and appellant to conspire to
murder Holt need not have been in writing and need not have been successful. There
was both direct and circumstantial evidence to support the verdict, and it should not be
disturbed because the body of Holt has not been located, nor should the verdict be
disturbed because the testimony of some of the witnesses may have been suspect. It
is up to the jury to pass upon the credibility of witnesses and the weight to be given
their testimony. U.S. v. Slaughter, 128 F.3d 623, 627 (8th Cir. 1997).

       Appellant’s final argument that the verdict of guilty as to Count I was
inconsistent with the verdict of not guilty as to Count II is without merit. As stated, the
appellant was found not guilty of the charge of murder in aid of racketeering, but was
found guilty of the charge of conspiracy to commit a murder in aid of racketeering. The
statute provides that when someone has received pecuniary value from an enterprise
engaged in racketeering activity and, in consideration of that value, murders any
individual in violation of the laws of any state or the United States “or attempts or
conspires so to do, shall be punished . . . . “ 18 U.S.C. § 1959(a).

       The jury could have found that appellant attempted to murder Marlene Holt or
conspired with others to murder Marlene Holt and be guilty of violation of the statute
even though Holt may not have been murdered. It is not necessary for the government
to prove that the conspirators actually succeeded in accomplishing their unlawful plan.
Manual of Model Jury Instructions for the District Courts of the Eighth Circuit,
Instruction No. 5.06E(1996). U.S. v. Nicoll, 664 F.2d 1308, 1315 (5th Cir.) cert. den.,
457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982).


                                           -9-
       The Court finds, therefore, that the verdicts are not inconsistent. On the basis
of the evidence, the jury could have found that no murder was committed and acquitted
appellant on Count II while, at the same time, finding him guilty of the conspiracy count
to conspire to murder in Count I and these findings would not be inconsistent.

        Even if the jury findings were inconsistent, appellant is not entitled to reversal
of the judgment on the Count on which he was convicted, if there is sufficient evidence
to support a finding of guilt, O’Dell v. Armontrout, 878 F.2d 1076, 1080 (8th Cir.
1989), Aggers v. U.S., 366 F.2d 744, 746, 747 (8th Cir. 1966), U.S. v. West, 549 F.2d
545, 553 (8th Cir. 1977), Batsell v. U.S., 403 F.2d 395, 400 (8th Cir. 1968), cert. den.,
89 S.Ct. 865 (1969). In Aggers, defendants Aggers and Coates were jointly tried on
three counts. Count I and II charged the defendants with illegal sales of heroin on
different dates. Count III charged defendants with conspiracy to receive, conceal, buy
and sell heroin, knowing the same to have been illegally imported. Aggers was found
guilty on all three counts. Coates was found not guilty on Count I and guilty on Count
III and there was a mistrial as to Count II. Thus, in Aggers, defendant Coates was
found guilty of the conspiracy count and not guilty of the substantive count. The same
result was reached by the jury here as appellant was convicted on the conspiracy count,
and not on the substantive count.

       The converse result was reached in West. There, the defendant was convicted
on substantive counts and acquitted on the conspiracy count. In both Aggers and West,
the Court determined that even if the verdicts were inconsistent, the defendants were
not entitled to reversal on the Count on which each was convicted. The same reasoning
is applicable here.

      We affirm the judgment of the district court.




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A true copy:

               Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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