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, Greenville, South Carolina, for Appellants. Randall Scott Hiller, RANDALL S. HILLER, P.A., Greenville, South Carolina, for Appellee.

2
OPINION

WIDENER, Circuit Judge:

Defendants appeal from judgments against them on state-law trespass 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 corporation 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

Operation 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

Palmetto 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

Palmetto's claims of state-law nuisance, assault and battery, and

interference 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, Melvin Daniel, Michael Cloer, Dan Brooks, and Joy Vaughn. Of these,
Miss

Schell, Brooks, and Gautsch were also named as defendants in

Palmetto'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 liable 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

Palmetto'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

manner 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

religious convictions. Finally, defendants challenge the

constitutionality

of RICO as applied to the facts of this case. We address these

challenges below.

I. TRESPASS

In South Carolina, "[a]lthough the entry by a person on the property of another may initially be lawful, the person becomes a trespasser 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

trespass 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,

specifically 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 evidence and argue on appeal that the district court erred in allowing

Palmetto 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

question.

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

simply 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

district 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

plaintiff'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 criminal 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 particular 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

trespass 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

minimum vacate the jury's verdict finding each defendant liable to Palmetto 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 defendants 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 Miller, Gerald Medford, Kenny McDowell, William Putnam, Grover
7
Owings, Lu Rash, Sara Rollins, Raymond Sandford, Stephen Timmerman, 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

Palmetto's favor, to submit the trespass claims against these

defendants

to the jury. Accordingly, we affirm the district court's denial of

defendants 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

defen8
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 judgment was entered against Operation Lifeline because it was never a

RICO defendant. We will assume that these references to Operation

Lifeline 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 judgment 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 racketeering 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

associates function as a continuing unit. United States v. Turkette,

452

U.S. 576, 583 (1981). The enterprise must be distinct from the persons 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 complaint 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 committed 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

racketeering activity in this case. Extortion, attempted extortion, and

conspiracy 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 conducted 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

Operation 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

Operation Lifeline or expressed pleasure after the fact with the results

of a relevant 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

conspired 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 damages. Absent inquiry as to why the patients missed their

appointments,

however, we find this evidence speculative at best and thus

insufficient as a matter of law to establish the financial loss suffered

by Palmetto 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

appointment 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

insofar as the testimony would have related to punitive damages. A

religious 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

defendant 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

testimony 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 Palmetto 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

whatever property it leased under its landlord. And the instruction,

even

if incorrect and out of place, might not be reversible error.

Nevertheless, 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

statute, we should not, and do not, decide the questions raised by the

defendants with respect to whether or not the statute is

constitutionally 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 Operation 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 contained 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

attorney 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.

Plaintiff'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 Rescue is, and she answered, "That's a group of--I guess it's the

national.... What I know about Operation Rescue, the national

organization, 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

Operation 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

Rescue 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

Lifeline'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

distributing 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 Foreman, 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

Foreman 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 Operation Lifeline completing an Operation Rescue questionnaire and

sending 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 NewsBrief" (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 Operation 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 sister 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 participated 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 Rescue's leader, Randall Terry, where the intent was to prevent physically individuals from obtaining an abortion or relating to

trespassing

intentionally on private property. J.A. at 289. He said he has discussed 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

attending 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

Lifeline 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 Operation Lifeline on how to conduct a rescue. J.A. at 295.

G. Lorraine D. McGuire. There is no reference to Operation Rescue 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

statistics on what happened nationally and locally for the National Day

of

Rescue. J.A. 442. Refers to Operation Rescue protest activity in

Pittsburgh, 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

margin 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 Lifeline (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

margin beside information on an unspecified abortion protest depicts

a
sign stating "Operation Rescue is Coming." J.A. at 462.

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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 Completed 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

individuals 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

Rescue 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

interviews." J.A. at 490.

20