Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 CR 267 PHILIP W. TONE, Judge.
Swygert, Chief Judge, Fairchild and Cummings, Circuit Judge.
Defendants Stanley B. Robinson and William Taylor appeal their convictions on an indictment brought against them and William H. Tolliver. Robinson was found guilty by the jury on four counts. Count one charged that Robinson and Tolliver, Chicago Police Officers, conspired with Theodore Holmes, Taylor, and unknown coconspirators to deprive citizens of their rights to life, liberty, and property without due process of law, and that the operation of the conspiracy resulted in the deaths of Jeff Beard and Verdell Smith, in violation of 18 U.S.C. § 241.*fn1 Robinson was found guilty of the conspiracy count; Tolliver and Taylor were acquitted. In addition, Robinson was convicted under counts eight, nine, and ten of the indictment. Counts eight and nine, describing violations of 18 U.S.C. § 242, charged that he, while acting under color of law, deprived Joseph Rubio and Jeff Beard of constitutional rights and protections.*fn2 Robinson was charged in count ten with the kidnapping and interstate transportation of Jeff Beard in violation of 18 U.S.C. § 1201(a).*fn3 Robinson was sentenced to life imprisonment on each of counts one, nine and ten, and one year imprisonment on count eight, the sentences to run concurrently.
Taylor, named as an aider and abettor to Robinson in counts nine and ten, was found guilty by the jury. He was sentenced to life imprisonment on each of the counts with the sentences to run concurrently.
The foregoing charges emanate from a series of criminal activities beginning in April 1972 and culminating with the murder of Jeff Beard in May 1972. About April 21, 1972 Holmes met Robinson to discuss matters involving Robinson's employment of Holmes. During the course of the conversation Robinson told Holmes that he knew of an endeavor whereby Holmes could make a great amount of money. Robinson referred to the scheme as "milkrun," which contemplated in vague terms the robbery of an armored car containing money. Robinson indicated to Holmes that four people and assorted weapons would be needed to accomplish the job. Holmes agreed to participate and told Robinson that he could get two other people to enter into the scheme. One of those was William M. O'Neal, Holmes' nephew. Holmes said O'Neal would be willing to join their efforts and that O'Neal had access to the needed weaponry due to O'Neal's membership in the Black Panthers.
O'Neal, unknown to Holmes, was a paid informant for the Federal Bureau of Investigation and had functioned in that capacity since 1968. Upon being contacted by Holmes, O'Neal was asked if he would consider becoming a part of a big robbery that was planned by a police officer. Although appearing noncommittal, O'Neal agreed to meet with Holmes and Robinson to discuss the robbery plans. The meeting was arranged. At the meeting, Robinson informed O'Neal that he was planning a big robbery worth a million dollars. Robinson said that financing would be necessary in order to stage the robbery and that the necessary funds could be obtained by shaking down drug pushers. In addition, Robinson stated that these preliminary shakedown activities would bring the group closer together.
A day or two after their initial meeting, Robinson and O'Neal met at Holmes' house. Robinson said he had a possible source of financing which they should check out. The three drove to a liquor store on the south side of Chicago. Robinson went in and returned ten minutes later. He stated they were going to murder a man named Chuck McFerren because he was a witness in a state murder trial. Robinson said that money was no object and that the "hit" would be worth more than $2,000 apiece which they could use to finance the "milkrun." Robinson told his confederates their "contractor," Pancho Hall, would not pay any money until McFerren was murdered and his body disposed of.
For two weeks after obtaining their contract, Holmes, Robinson, and O'Neal staked out the El Caballero Lounge in Chicago which McFerren owned, waiting for McFerren to appear, and then following him, looking for a suitable moment to kill him. During this two week period, the conspiracy was joined by Nathaniel Junior. Robinson informed Junior that they would be shaking down drug dealers and that he would arrest them. Robinson informed Junior that the man they were presently stalking, McFerren, would only be a test to see if they could work together and, if successful, Robinson had a plan to rob an armored car containing a million dollars. Junior was informed by Robinson that if they could work together, Robinson could get them other "hit" contracts.
On May 6, 1972, O'Neal, Robinson, and a person O'Neal identified as William Tolliver were seated in Robinson's car outside of McFerren's El Caballero Lounge waiting for McFerren to leave. After waiting six hours, at approximately 5:00 a.m., McFerren's Cadillac automobile pulled away from behind the club and headed toward the Dan Ryan Expressway. Robinson followed the automobile onto the expressway. After trailing the automobile for a mile, Robinson maneuvered his car into a position that enabled the person O'Neal identified as Tolliver to fire a shotgun blast through the rear window of the Cadillac. The shot killed the passenger in the automobile. The next day O'Neal called Robinson and informed him that the wrong person had been shot; that McFerren was not riding in the Cadillac and, instead, they had shot a man named Verdell Smith. Later that day, Robinson and O'Neal went to Pancho Hall to collect money on their contract. Robinson stated that Hall declined to make any kind of payment until the right person was dead.
The next event in the conspiracy began with a meeting on May 15, 1972 between Robinson, O'Neal, and Robert Bruce on the west side of Chicago. Before the meeting Robinson had informed O'Neal that he had a $5,000 murder contract on Joe Rubio, a reputed narcotics pusher. During the meeting they spotted Rubio and proceeded immediately to follow him in O'Neal's car.
Robinson instructed O'Neal to overtake Rubio and stop the car he was in. After stopping Rubio, Robinson emerged from his car with his gun drawn. Bruce and O'Neal likewise got out with their handguns drawn. Robinson and Bruce opened Rubio's car door and forced him out whereupon Robinson handcuffed Rubio's hands behind his back and put him in the back seat of O'Neal's car. Robinson cursed Rubio, stating that he had a contract to kill him and directed O'Neal to drive to a public park forest where he said he intended to murder Rubio. Robinson informed Rubio of the $5,000 amount of the contract and indicated that it would cost Rubio money to get out of the car alive. As they proceeded to the park forest, O'Neal told Robinson that they should use Rubio to their financial advantage by having him push drugs and that it was therefore senseless to kill the man.
After reaching an apparent agreement with Rubio that he would distribute narcotics for them, the three drove Rubio back to the area in Chicago where they had abducted him. As part of the cost of getting out of the car alive Rubio paid $100 each to Robinson, O'Neal, and Bruce. After Rubio left, Robinson indicated to Bruce that there were other things they would do to make money, including the "milkrun." In addition, Robinson told Bruce that they would also have hit contracts to perform.
The last event occurred on May 17, 1972. Robinson called O'Neal and told him that he had a task to perform that evening. The two met and Robinson explained that he had a "contract" worth $1000 on Jeff Beard, a narcotics pusher. Taylor purportedly had made the contract with Robinson. Robinson and O'Neal went to the area in Chicago where Beard lived and waited for his appearance. After waiting until 10:00 p.m., with no success, they were prepared to call it a night. In passing a pool hall, however, Robinson spotted Beard. Shortly thereafter, Beard left the pool hall, and Robinson accosted him. Informing Beard that he had a warrant and that he was going to take Beard to the police station, Robinson searched Beard, handcuffed him, and placed him in the back seat of the car being driven by O'Neal. Robinson ordered O'Neal to drive to the "Indiana District," to which O'Neal responded by driving south toward Indiana. On the way Robinson ordered O'Neal to stop, whereupon Robinson, after making a phone call, took control of the car and drove on to Indiana. Robinson told Beard that they wanted merely to talk to him ...