# United States v. Barney Grabiec

> Court of Appeals for the Seventh Circuit · September 2, 1977 · 563 F.2d 313

URL: https://www.frixlaw.com/law-library/cases/9464189

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Barney GRABIEC, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** September 2, 1977
- **Citations:** 563 F.2d 313; 1977 U.S. App. LEXIS 11698
- **Precedential status:** Published
- **Opinion:** Dissent by Swygert
- **Judges:** Swygert, Bauer, Grant
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9464189

## How later opinions describe it (automated extraction)

- observing that trial court’s discretion in controlling closing argument is not to be overturned absent showing of clear abuse

## Opinion text

SWYGERT, Circuit Judge,
dissenting.
The trial court erred, in my opinion, in admitting evidence of four separate criminal acts committed by one of the two charged conspirators. Gerald Wall and Barney Grabiec were charged with conspiracy to extort under the Hobbs Act, 18 U.S.C. § 1951 , by charging a “payoff” from Crown Personnel, Inc. to “fix” a violation of Chapter 48, Section 197(g) of the Illinois Revised Statutes.
As the majority opinion indicates, Thomas Moran was the middleman in the alleged plot. Moran testified that he arranged with the vice president of Crown for the payment of $2500 which was delivered to Wall. Thereafter Crown received a token penalty at the hands of Grabiec which was never enforced. Moran was allowed to testify over objection to four other payments to Wall, these in connection with applications for licenses to operate employment agencies: two in connection with his own licenses, a third by William Broome, and a fourth by Ronald Van Matre. There was no evidence that Grabiec was involved in any of these transactions. Broome’s and Van Matre’s testimony corroborated Moran’s concerning the payments of sums of money to Moran, who in turn was to deliver these amounts to Wall.
*320 The majority opinion quotes this court’s statement in United States v. Pate, 426 F.2d 1083, 1086 (7th Cir. 1970), for the general proposition that evidence of prior criminal acts by an accused is inadmissible unless relevant to show “motive or some other element of the crime charged.” The majority then offers an explanation why it was not error to admit evidence of the independent extortive payments to Wall through Moran: “Moran, as middleman and bag-man, was a central figure in the conspiracy charged. These challenged transactions, as well as the other two discussed above, illuminated the character of the conspiracy and the extent of the involvement of the participants. The role played by Moran and his modus operandi were unquestionably probative matters.”
With deference to my colleagues, I suggest that the explanation is oversimplified. Moran was the middleman in the alleged conspiracy to extort money from Crown. That conspiracy involved Wall, Grabiec, and Moran. Moran’s role was admitted through his own testimony. The other four transactions which are challenged, however, had to do only with Wall in connection with applications for licenses. They did not tend to show in any manner the character of the conspiracy by either Wall or Grabiec to extort money from licenseholders to “fix” violations. Nor did they in any manner or form show the “extent of the involvement of the participants.” These transactions were not similar criminal acts in any true sense of the word. The only claim to similarity is their extortive nature and an involvement by one of the alleged conspirators. In all other respects they are quite dissimilar. Their flimsy similarity is not enough, in my opinion, to allow their admission into evidence.
Moreover, the Van Matre transaction did not occur until January 1973, five months after all the operative facts of the alleged conspiracy had occurred. The fact that the notice of the disposition of the Crown violation, dated August 23, 1972, stated, “Commencement of the penalty date to be designated by the Honorable Barney J. Grabiec, Director of Labor,” could not by any stretch of the imagination mean that the alleged conspiracy continued beyond August 1972 and into January 1973. Thus the Van Ma-tre transaction was a subsequent criminal act and, for that reason alone, should have been excluded from the evidence.
There can and should be no doubt about the prejudicial effect the challenged evidence had upon both Wall and Grabiec despite the opposite view taken by the majority. On this point the majority says:
However, during the course of the trial, the jury was instructed on several occasions that these other similar acts were not to be used at all in assessing the guilt or innocence of Grabiec. At the conclusion of the trial, the jury was instructed as follows:
“Any evidence relating to alleged transactions involving Broome Technical Agencies, Inc., Van Matre Associates, Career Professionals, Inc., and Career Counselors, Inc., may not be considered by you as evidence that the defendant, Gerald Wall, committed the crime for which he is now on trial or any propensity to commit crime generally or that he is a person of bad character or bad repute for that.
“It may be considered by you only in connection with the elements of the crime for which he is now on trial, a crime which requires an intent, a specific intent to do a certain act, an intent to do that act willfully and knowingly . . . and it may be considered by you to the extent that is shown by the evidence to show that a similar method of operation was employed in the prior crime and it may be considered by you to this extent that is shown by the evidence to show the relationship between Thomas Moran and Gerald Wall.
“This evidence must not be considered by you at all with respect to Barney Grabiec.”
In the light of the nature of the testimony and limiting instructions given by the trial judge, we do not believe that the *321 defendant was so unduly prejudiced as to result in the denial of a fair trial.
Two comments are in order. First, it will be noted that according to the instructions, the jury could consider the challenged evidence to show “intent” by Wall, as well as “a similar method of operation” and the “relationship of Thomas Moran and Gerald Wall.” The majority, significantly, does not mention the intent of Wall as justification for admissibility of the evidence. They instead justify its admission for its probative value regarding “the character of the conspiracy and the extent of the involvement of the participants.” Second, the instructions attempt to limit the evidence to Wall. The jury was admonished not to consider the evidence of the other “offenses in any respect to Barney Grabiec.” However, the effect of this admonition on the jury was, in my judgment, practically nil. This type of limitation when condoned in a conspiracy case is merely a conscience-saving technique and has little or no pragmatic value. For as Mr. Justice Jackson said in his concurring opinion in Krulewich v. United States, 336 U.S. 440, 453 , 69 S.Ct. 716, 723 , 93 L.Ed. 790 (1948): “The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559 , 68 S.Ct. 248 , 92 L.Ed. 154 , all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 2 Cir., 167 F.2d 54 .”
The prejudice as well as the entire problem as to Grabiec could have been avoided if the district court had granted Grabiec’s pretrial motion for severance which was based on the ground that any evidence of Wall’s prior criminal conduct would unduly prejudice him. The denial of the motion constitutes, I believe, an equally valid and alternative basis for reversal.
In sum, I entertain the view that all too often, as in this case, the prosecution is given carte blanche to introduce evidence of prior criminal conduct under the rubric that though such evidence is irrelevant, nonetheless it may be admitted to show intent, motive, design, etc., when upon a strict analysis either the prior conduct is not similar to that charged or there is really no issue which makes the evidence relevant. It seems to me that we have tended to forget the salutary justification for the exclusionary part of the rule and that it is in danger of being obliterated by the exceptions. *
*322 I would reverse and remand for a new trial.
Professor Wigmore in his treatise on evidence quotes from a number of cases delineating the purpose of the rule. Two are illustrative:
1921, Bricken, P. J., in Dennison v. State, 17 Ala.App. 674 , 88 So. 211 (larceny of an automobile): “The rule, which requires that all evidence which is introduced shall be relevant to the guilt or the innocence of the accused, is always applied with considerable strictness in criminal proceedings. The wisdom and justice of this, at least from the defendant’s standpoint, are self-evident. The defendant can with fairness be expected to come into court prepared to meet the accusations contained in the indictment only, which in this case was the larceny of the Dodge automobile. On this account, all the evidence offered by the State should consist wholly of facts which were within the range and scope of the allegations contained in the indictment upon which he is being tried. The evidence introduced over the defendant’s objection relating to other offenses than that charged in the indictment no doubt alarmed the suspicions of the jury, or at least it may have had that effect, and inclined them the more readily to believe in the guilt of the defendant of the offense charged, and rendered the jury less inclined to listen or give proper weight and consideration to whatever was offered or said in his defense. For it is well known, in fact a matter of common knowledge, that the large majority of persons of average intelligence are untrained in logical methods of thinking, and are therefore prone to draw illogical and incorrect inferences and conclusions without foundation. It is also a matter of common knowledge that from such persons jurors are selected. And like others they will very naturally believe that a person is guilty of the offense with which he is charged if it is proved to their satisfaction that he has committed a similar offense, or any offense of an equally heinous character. So, as before stated, the general rule in this connection forbids the introduction of evidence which will show, or tend to show, that the accused has committed any crime wholly independent of the offense for which he is on trial.” 1 Wigmore § 194, at 649 (3d ed. 1940).
1873, Allen, J., in Coleman v. State, 55 N.Y. 81 : “A person cannot be convicted of one offence upon proof that he committed anoth *322 er, however persuasive in a moral point of view such evidence may be. It would be easier to believe a person guilty of one crime if it was known that he had committed another of a similar character, or indeed of any character. But the injustice of such a rule in courts of justice is apparent. It would lead to convictions upon the particular charge made by proof of other acts in no way connected with it, and to uniting evidence of several offences to produce conviction of a single one.” 1 Wigmore § 194, at 648 (3d ed. 1940).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464189. Public record. Not legal advice.