Petition — Durkee v. United States

Supreme Ceert, U. S.

FILLED

JUL 2 1975

__

Iu the

Supreme Court of the United States

Octroser Term, 1974

HAROLD DURKEE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JULIUS LUCIUS ECHELES

CAROLYN JAFFE

35 East Wacker Drive

Chicago, Illinois 60601

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

Judgment Below .................00-...-s.0-s-scscscenenenessssnenessssssssssnesse

LEE TTT

Questions Presented . ..................-.--.0.-.s:-c-sccsescsesnsneneseseesnsore

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\ i a Ci, Cn iscisnnieneimeie

) Reasons for Granting the Wit -.........-.---.------s+eneees=*=

The evidence was insufficient to sustain convic-

tion, where the alleged ‘‘victim’’ of the extortion

was admittedly engaged both in legitimate trade

in jewelry and in illegal transactions—including

the purchase and resale of known stolen property,

including jewelry, and of contraband (marijuana).

Therefore, the evidence failed to demonstrate any

actual or even realistically probable effect on that

interstate commerce which the Hobbs Act (18

U.S.C. 1951) was designed to protect (1.e., legi-

timate commerce), inasmuch as there was no evi-

dence proving or even tending to prove that the

$350 which the ‘‘victim’’ paid came from any of

his legitimately (as opposed to illegally) obtained

funds, or that said sum, had it not been paid,

would have been used to purchase legitimate

merchandise from interstate commerce rather than

stolen property or contraband. Certierari should

be granted so that this Court may serutinize the

Seventh Circuit’s unprecedented extension of the

Hobbs Act to reach the instant factual situation,

and may speak to a proper construction of that

De a cciincssnssssineetitemencttinaiaitiinnieaiaainminenitaasaistnninetat

il

PAGE

Appendix A—Unpublished Order of Court of

BD ccccessenrsniineniimnen scsitihdattihataianaiien App. 1

Appendix B—Order of Court of Appeals denying

Petition for Rehearing and Suggestion for

ne U EEN DEN EEETS App. 7

Appendix C—Summary of Additional Facts ............ App. 8

AUTHORITIES CITED

Cases

Enmons v. United States, 410 U.S. 396 (1973) ............ 6, 11

Stirone v. United States, 361 U.S. 212 (1960) .......... 6, 9

United States v. Augello, 451 F.2d 1167 (2 Cir. 1971) .. 10

United States v. DeMet, 486 F.2d 816 (7 Cir. 1973) ...... 9,10

United States v. Gill, 490 F.2d 233 (7 Cir. 1974) ........ 9

United States v. Staszcuk, No. 73-1869 (en bane, not

yet reported, decided May 16, 1975; original opinion

at 502 F.2d 875 (7 Cir. 1975) ; petition for certiorari

filed June 13, 1975, No. 74-1579) ...........2..-.-csecescenees 7,9

Other Authorities

be) 2, 3, 4, 6, 9

DE UG.C. URGED) nncnnncnccnesecccnenecscnscnsnossnencencsenecmmenmncoenesneece 2

Supreme Court Rule 22.2 ..............-...-.-c-c-coreccsesaseseenessemecses 2

F.B.App.P. 35(b) & 40 ..u..............c.eceeesceeeescomneseneeresonnecenees 2

a BS eee 1

Chap. 38, secs. 33-1 & 33-3, Ill. Rev. Stat. 1978 ........ 11

In the

Supreme Court of the United States

Octosper TeRM, 1974

No.

HAROLD DURKEE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Harold Durkee, prays that a Writ of Cer-

tiorari be issued to review the judgment of the United

States Court of Appeals for the Seventh Circuit.

Judgment Below

The order of the Court of Appeals, unpublished per

Seventh Cireuit Rule 28, is reprinted as Appendix A to

this Petition, ifra.

2

Jurisdiction

The judgment of the Court of Appeals was entered on

May 28, 1975. Petition for rehearing and suggestion for

rehearing in bane (pursuant to F.R.App.P. 35(b) & 40),

timely filed, was denied on June 26, 1975. (App. B) The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1) and Rule 22.2 of the Rules of this Court.

Questions Presented

1. May conviction for violation of the Hobbs Act (18

U.S.C. 1951) be upheld absent proof that interstate com-

merce was affected?

2. Was the evidence sufficient to sustain conviction for

violation of the Hobbs Act (18 U.S.C. 1951) where the

alleged ‘‘victim’’ of the extortion was admittedly engaged

both in legitimate trade in jewelry and in illegal transac-

tions—including the purchase and resale of known stolen

property, including jewelry, and ef contraband (mari-

juana—absent any evidence proving or even tending to

prove that the $350 which the ‘‘victim’’ paid came from

any of his legitimately (as opposed to illegally) obtained

funds, or that said sum, had it not been paid, would have

been used to purchase legitimate merchandise from inter-

state commerce rather than stolen property or contra-

band?

3. Upon the facts as stated in question (2) above, did

the evidence demonstrate any actual or even realistically

probable effect upon that interstate commerce (7.e., legiti-

mate commerce) which the Hobbs Act was designed to

protect?

—e

3

Statute Involved

The Hobbs Act, 18 U.S.C. 1951, provides in pertinent

part:

§ 1951. Interference with commerce by threats or

violence

(a) Whoever in any way or degree obstructs, de-

lays, or affects commerce or the movement of any ar-

ticle or commodity in commerce, by robbery or extor-

tion or attempts or conspires so to do, or commits or

threatens physical violence to any person or property

in furtherance of a plan or purpose to do anything in

violation of this section shall be fined not more than

$10,000 or imprisoned not more than twenty years,

or both.

(b) As used in this section—

(1) The term ‘‘robbery’’ means the unlawful

taking or obtaining of persona! property from the

person or in the presence of another, against his

will, by means of actual or threatened force, or

violence, or fear of injury, immediate or future,

to his person or property, or property in his cus-

tody or possession, or the person or property of

a relative or member of his family or of anyone

in his company at the time of the taking or ob-

taining.

(2) The term ‘‘extortion’’ means the obtaining

of property from another, with his consent, in-

duced by wrongful use of actual or threatened

force, violence, or fear, or under color of official

right.

(3) The term ‘‘commerce’’ means commerce

within the District of Columbia, or any Territory

or Possession of the United States; all commerce

between any point in a State, Territory, Posses-

sion, or the District of Columbia and any point

outside thereof; all commerce between points

within the same State through any place outside

such State; and all other commerce over which

the United States has jurisdiction.

4

STATEMENT OF THE CASE

Petitioner, Harold Durkee, was found guilty by a jury’

of both a substantive and a conspiratorial violation of the

Hobbs Act, 18 U.S.C. 1951, arising out of a single alleged

extortionate occurrence,’ as charged in a two-count indict-

ment, 74 CR 15. (R. 1, A. 1-3). The trial court denied

1 Petitioner was jointly indicted and tried with two co-defendants,

Michael McCarthy and Ronald Uginchus, who were also found

guilty as charged. All their convictions were affirmed by the Court

of Appeals. (App. A)

2 Count 1 alleged that on or about September 10, 1973, defendants

obstructed, delayed and affected commerce and the movement of

jewelry and other articles in commerce, in that they obtained $350

from William Leverence, a jeweler engaged in interstate commerce,

with his consent, induced by the wrongful use of fear of economic

harm and under color of right, by threatening to use their positions

as Chicago police officers to impede, obstruct and prevent carrying

on the business of Leverence jewelers unless and until Leverence

paid defendants $350, in violation of 18 U.S.C. 1951. Count 2

charged that from September, 1973, and continuing thereafter to

the date the indictment was filed, defendants conspired to commit

extortion, which extortion would and did obstruct, delay and affect

commerce and the movement of jewelry and other articles in com-

merce, in that defendants would and did wrongfully use their posi-

tions as Chicago police officers to unlawfully obtain various sums

of money, which money was not due them or the Chicago Police

Department, and which money would be and was obtained by defen-

dants from the same William Leverence, with his consent, said con-

sent being induced by fear of economic harm and under color of

official right, in violation of 18 U.S.C. 1951. (R. 1, A. 1-3)

3“R” refers to the Record on Appeal, “Def. Br.” to petitioner's

Brief, and “A.” to the Appendix to that Brief, all heretofore filed in

the Court of Appeals for the Seventh Circuit in cause No. 74-1911;

“Tr.” refers to the Transcript of Proceedings; and “App. A” to

Appendix A to this Petition.

5

petitioner’s motion for judgment of acquittal at the close

of the government’s case, (A. 3), and denied his post-

trial motions as well. (R. 60,62) Petitioner was sentenced

to 9 months imprisonment upon each of the two counts,

sentences to run concurrently. (R. 63, A. 4) The Court

of Appeals for the Seventh Circuit affirmed. (App. A)

The facts directly pertinent to the questions raised in

this petition are as follows:

While it was stipulated that certain of Leverence’s in-

ventory for resale in Illinois was obtained from states out-

side Illinois (R. 55A), there was undisputed evidence that

Leverence knowingly was engaged in various illegal enter-

prises—including purchase of stolen items, including

jewelry, for resale, and purchase and resale of mari-

juana—simultaneous with his legitimate business. (Tr. 10,

30, 35-36, 78, 83, 87, 153, 635, 684-91) There was no evi-

dence as to whether the source of the $350 removed from

his office represented money earned from illegal or legal

business, or whether, had he not given this sum to the offi-

cers, he would have used it for the purchase of legal or

illegal property.

Other facts adduced at trial, not essential to an under-

standing of the issues presented herein, are briefly sum-

marized as Appendix C to this Petition in order to permit

the Justices to view the issues presented in the context

and factual framework of this particular case as it was

actually prepared and tried.

REASONS FOR GRANTING THE WRIT

The evidence was insufiicient to sustain conviction, where

the alleged “victim” of the extortion was admittedly en-

gaged both in legitimate trade in jewelry and in illegal

transactions—inciuding the purchase and resale of known

stolen property, including jewelry, and of contraband

(marijuana). Therefore, the evidence failed to demon-

strate any actual or even realistically probable effect on

that interstate commerce which the Hobbs Act (18 U.S.C.

1951) was designed to protect (i.e., legitimate commerce),

inasmuch as there was no evidence proving or even tend-

ing to prove that the $350 which the “victim” paid came

from any of his legitimately (as opposed to illegally) ob-

tained funds, or that said sum, had it not been paid,

would have bee... used to purchase legitimate merchandise

from interstate commerce rather than stolen property or

contraband. Certiorari should be granted so that this

Court may scrutinize the Seventh Circuit’s unprecedented

extension of the Hobbs Act to reach the instant factual

situation, and may speak to a proper construction of

that Act.

The statute for violation of which petitioner was con-

victed, 18 U.S.C. 1951, the Hobbs Act, was designed to

protect the channels of interstate commerce from obstruc-

tion or interference by robbery or extortion. Stirone v.

United States, 361 U.S. 212, 215, 218 (1960). This Court

has been careful strictly to construe the Act, with great

deference to maintenance of the delicate state-federal

balance. Enmons v. United States, 410 U.S. 396, 411-12

(1973).

In affirming petitioner’s convictions in the case at bar,

however, the Seventh Cireuit has extended the Hobbs

7

Act’s coverage beyond permissible limits. The instant de-

cision is, we submit, the latest in a series of Seventh Cir-

cuit cases stretching the Hobbs Act to and beyond the

breaking point. For the Seventh Circuit’s most recent pro-

nouncement as to the scope and intended reach of the

Hobbs Act prior to the instant decision, see United States

v. Stasecuk, No. 73-1869 (en bane, not yet reported, decid-

ed May 16, 1975; original opinion at 502 F.2d 875 (7 Cir.

1975); pet. for cert. filed 6/13/75, No. 74-1579).*

Surely Congress had no intent to protect or promote

commerce in illegal commodities. Yet, by prosecuting and

convicting petitioner herein for having violated the Hobbs

Act for the conduct demonstrated by this record, the gov-

ernment has done precisely that—that is, it has protected,

promoted and condoned the conducting by William Lever-

ence, the alleged ‘‘victim,’’ of his various nefarious en-

terprises.

And by affirming petitioner’s convictions in the face of

his argument as advanced on appeal’—despite unrefuted

4 While the en banc opinion in Staszcuk gives to the Hobbs Act

its broadest possible reading of any published decision to date, even

Stasscuk does not countenance the result in the case at bar. In

Staszcuk, a majority of the full court affirmed conviction even though

interstate commerce was not in fact affected at all, because plans to

build an animal hospital (made possible by rezoning which had been

facilitated by an extortionate payment to defendant, an alderman)

fell through after the rezoning had been accomplished. Affirmance

was based upon evidence that if the plans had been carried out (as

had been anticipated at the time of the extortionate payment and

the rezoning), commerce would have been affected. (Uncontro-

verted evidence was adduced that the aborted plans necessarily would

have involved use of materials from outside Illinois.) However,

nothing in Staszcuk suggests a reading of the Hobbs Act as herein,

in effect, promoting illegal commerce.

5 Def. Br. Point 1(B), raises the issue presented in this petition.

8

evidence of Leverence’s illegal dealings—the Seventh Cir-

cuit has placed its judicial imprimatur on the govern-

ment’s action, the effect of which amounts to promotion

of traffic in stolen goods and contraband.

As noted by the court, (App. A, p. 3), it was stipulated

that certain of Leverence’s legitimate inventory for re-

sale in Illinois was obtained from states outside Illinois.

(R. 55A) However, the court completely ignores the thrust

of the fact that Leverence admittedly engaged, not only

in the legitimate business of reselling lawfully obtained

jewelry, but also in various illegal businesses, including

the purchase and resale of stolen items, including jewelry,

and purchase and resale of marijuana. (Tr. 10, 30, 78, 83,

153, 635, 684-91) Moreover, Leverence’s traffic in stolen

goods took place at the same location where he also en-

gaged in the legitimate sale of jewelry. (Tr. 687)

The money Leverence testified he gave the officers after

they confronted him with his purchase of the lens from

Bodie,® came from the safe in his place of business. (Tr.

6 James Bodie, an admitted “fruit hustler,” (i.e., he would rob

and extort money and valuables from homosexual men he had

“picked up” at the Greyhound Bus Station in Chicago; Tr. 85-86,

238-43), sold the items he thus obtained to “fences” such as Lever-

ence. (Tr. 78) For the past ten years he had regularly sold such sto-

len merchandise to various persons (Tr. 80-83), including Lever-

ence. (Tr. 10, 35-36, 78, 83). Leverence admittedly knew of Bo-

die’s activities in this regard and knowingly purchased stolen prop-

erty for resale from him, as well as from others like him. (Tr.

684-91)

The lens which Bodie “sold” to Leverence just before defendants

allegedly extorted Leverence was believed by Leverence to have been

stolen property. (Tr. 31, 639-49)

For additional facts, see App. C.

9

653-54) There is not a shred of evidence whether this

money was derived from Leverence’s lawful business or

from his illegal activities, nor whether, had the money not

been paid, it would have been used to purchase lawful or

illegal items for resale.

On this state of the evidence, it is impossible to find that

‘‘commerce’’? as that term is defined in 18 U.S.C. 1951,

and necessarily meaning legitimate commerce, was in any

was affected by petitioner’s conduct. An actual (or realisti-

cally probable’) effect on commerce is prerequisite to con-

viction on either Count, Stirone v. United States, 361 U.S.

212 (1960), and there is nothing in the evidence from which

this necessary element is either proven or properly

inferable.

Nonetheless, in an unconscionable over-extension of the

Hobbs Act to a point beyond the pale of any legitimate

reading of the statute or interpretation of congressional

intent, the Seventh Circuit finds that this essential juris-

dictional element has satisfactorily been proven. (App.

A, p. 3)

The court’s reliance on cases involving police extortion

of tavern owners, United States v. DeMet, 486 F.2d 816

(7 Cir. 1973), and United States v. Gill, 490 F.2d 233 (7

Cir. 1974), (App. A, p. 3), is misplaced, since those cases

are not factually in point.

7 Per the en banc majority opinion in Staszuck, supra, even if

there is no actual effect on commerce, the jurisdictional element of

the statute is satisfied if there is a showing of a “realistic probability

that an extortionate transaction will have some effect on interstate

commerce.” (No. 73-1869, sl. op. p. 11) But under the facts as

adduced in the case at bar, there is not even any showing of “realistic

probability.” See footnote 4, p. 7, supra, and accompanying text.

10

In DeMet, tavern owners were being forced to ‘‘pay

off’’ police to prevent being arrested for alleged liquor li-

cense violations (e.g., staying open after hours), while in

Gill the threat was to arrest a tavern owner for illegally

having sold liquor to a minor. These situations cannot

properly be compared to the case at bar, inasmuch as the

violations allegedly being committed by the tavern owners

in those cases constituted malum prohibitum offenses inti-

mately connected with and directly resulting from the

carrying out of the victims’ legitimate businesses, while

Leverence’s purchase of a stolen camera lens from a

known ‘‘fruit hustler’’ cannot similarly be characterized.

The latter, rather, constitutes a separate and distinct,

malum in se, illegal act not connected to or resulting from

Leverence’s legitimate business.

United States v. Augello, 451 F.2d 1167 (2 Cir. 1971),

also relied on by the court, (App. A, p. 3), is not contrary

to petitioner’s position herein; for in Augello, there was

not, as here, the simultaneous carrying out of legal and

illegal businesses from the same location. Avugello thus

does not cut against petitioner’s argument.

Petitioner’s failure to cite any cases directly supporting

his position (see App. A, p. 3), is due to the simple fact

that this case is factually unique.

In view of the nature of Leverence’s various businesses,

legitimate and otherwise, and in the absence of any evi-

dence ear-marking the funds paid as either having been

derived from or intended for legitimate commerce, peti-

tioner’s convictions should be reversed.

11

Proper construction of congressional legislation is es-

sential to the orderly administration of justice. Granting

certiorari in the instant case would permit this Court to

scrutinize the Seventh Circuit’s unprecedented extension

of the Hobbs Act which permits it to reach the instant

factual situation,* and would give this Court an excellent

opportunity definitively to construe the Act.

Certiorari should be allowed so that the Seventh Cir-

cuit’s unwarranted interpretation of the Hobbs Act—

which permits that Act and the judicial system to be used

for the furtherance of illegal enterprise—may not stand

as law.

CONCLUSION

To resolve the question herein presented regarding the

proper construction of the Hobbs Act—constituting an im-

portant issue of federal law which has not been, but should

be, decided by this Court—certiorari should be allowed

to review the judgment of the Seventh Circuit; and, upon

review, petitioner’s convictions should be reversed for in-

sufficiency of the evidence.

Respectfully submitted,

JuLius Lucius EcHELEs

CAROLYN JAFFE

Attorneys for Petitioner

8 Moreover, it should also be noted that since petitioner’s alleged

conduct is readily denounceable as criminal by State law, [see Chap.

38, secs. 33-1 (bribery) and 33-3 (official misconduct), Ill. Rev.

Stat. 1973], this Court’s policy as enunciated in Enmons v. United

States, 410 U.S. 396, 411-12 (1973), militates against such an

over-broad reading of the Hobbs Act.

—_—_——"T == <= =a aos =o

APPENDIX A

In The

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

No. 74-1911

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

vs.

MICHAEL McCARTHY, RONALD UGINCHUS, and

HAROLD DURKEE,

Defendants-A ppellants.

ORDER [entered May 28, 1975, by Chief Judge Fairchild

and Circuit Judges Pell and Tone} [Unpublished per Sev-

enth Cireuit Rule 28].

In this appeal from their convictions on charges of ex-

tortion and conspiracy to commit extortion in violation

of the Hobbs Act, 18 U.S.C. § 1951, defendants raise es-

sentially eight separate issues. Finding no reversible

error, we affirm the convictions.

Issues I, II and III

On three different grounds, defendants challenge the

sufficiency of the evidence. First, they allege that a de-

fense of entrapment was established as a matter of law.

The government counters that the entrapment defense

should be rejected as a matter of law, for, says the gov-

ernment, whatever the object of the ‘‘set-up’’ for Lever-

App. 2

ence, whether to extort money or obtain an informant,

it is clear from the evidence that the defendants were not

entrapped by Bodie into their subsequent course of con-

duct, although he provided the opportunity for the offense.

Compare Sherman y. United States, 356 U.S. 369, 373

(1958), with United States v. Smith, 508 F.2d 1157 (7th

Cir. 1975).

The Supreme Court has stated in Sorrells v. United

States, 287 U.S. 485, 441-442 (1932):

‘

‘. .. the fact that officers or employees of the Gov-

ernment merely afford opportunities or facilities for

the commission of the offense does not defeat the

prosecution... . A different question is presented

when the criminal design originates \ ith the officials

of the Government, and they implant in the mind of

an innocent person the disposition to commit the al-

leged offense and induce its commission in order that

they may prosecute.”’

See also United Staies v. Russell, 411 U.S. 423, 433-436

(1973); United States v. Smith, supra, 508 F.2d at 1158;

United States v. Haden, 397 F.2d 460, 466 (7th Cir. 1968),

cert, denied, 396 U.S. 1027 (1970).

Here the evidence does not establish entrapment as a

matter of law. We need not decide whether it establishes

that as a matter of law there was no entrapment, because

the trial judge submitted the issue to the jury with appro-

priate instructions, and there was ample evidence to sup-

port its rejection of the defense of entrapment. Bodie, a

paid federal informant, apparently first brought to de-

fendant McCarthy’s attention the fact that Leverence was

vulnerable to a ‘‘set-up.’’ But there was evidence from

which the jury could have found that it was McCarthy

who for several years ‘‘repeatedly asked Bodie to help

him ‘set-up’ Leverence,’’ and it was not until the summer

App. 3

of 1973 that Bodie finally contacted MeCarthy and ‘‘asked

McCarthy whether he still wanted to get Leverence.’’ This

evidence indicated that Bodie did not induce MeCarthy

to commit the offense, and that in fact it was McCarthy

who pressed Bodie to participate in the ‘‘set-up’’ scheme

over a period of years before Bodie agreed to cooperate.

The evidence amply supported the jury’s resolution of

the issue of entrapment against defendants.

Defendants’ second argument regarding the sufficiency

of the evidence is that the jurisdictional element of the

effect on interstate commerce of the alleged extortion from

Leverence of $350 was not proven because the evidence

did not show that the money came from legitimate, as

opposed to illegally obtained, funds, or that the money

would have been used to purchase legitimate merchandise

in interstate commerce. That Leverence bought substan-

tial amounts of jewelry and other merchandise from out-

side Illinois as part of his legitimate jewelry business was

stipulated by the parties. The reasoning of the tavern-

owner extortion cases applies here: although a portion

of Leverence’s business was illegal and some of his funds

thus illegally obtained, the ‘‘depletion of ... [his] as-

sets by the . . . money extorted, or the cessation of his

business if he did not yield and his fears were realized,

would tend to reduce the demand for and amount of”’

legitimate merchandise, in this case jewelry and supplies,

‘‘moving into Illinois.’’ United States v. DeMet, 486 F.2d

816, 821 (7th Cir. 1973), cert. denied, 416 U.S. 969 (1974) ;

see United States vy. Gill, 490 F.2d 233, 236-237 (7th Cir.

1973), cert. denied, 417 U.S. 968 (1974); see also United

States vy. Augello, 451 F.2d 1167, 1169 (2d Cir. 1971), cert.

denied, 405 U.S. 1070 (1972). Defendants cite no cases to

the contrary. Thus, we conclude that the jurisdictional

requirement of effect on interstate commerce was satis-

factorily demonstrated.

App. 4

The third contention concerns only the sufficiency of

the evidence as to defendant Durkee. Regardless of wheth-

er Durkee was involved from the outset, and there is

some evidence from which the jury could have inferred

that he was, it was unnecessary for the government to

prove that he was a member of the conspiracy at its incep-

tion, if it proved he later became a member. United States

v. Hickey, 360 F.2d 127, 138 (7th Cir. 1966), cert. denied,

385 U.S. 928 (1966). The record contains evidence that

Durkee participated in planning discussions in the Garrick

Restaurant and in McCarthy’s car on the way to Lever-

ence Jewelers, and that he actually participated in carry-

ing out the extortion itself by handing Bodie the camera

and giving him some final instructions, by placing Lever-

ence under arrest and later telling him he could probably

beat the charge but did not need the aggravation, by ask-

ing Leverence ‘‘what it was worth for them to forget about

it,’’ by bargaining for a payment larger than $350, by

agreeing to the $350 after consulting McCarthy, by ac-

companying Leverence on the trip to the bank, and by

accepting the payoff money and giving Bodie his $90 share

of it. It was of course unnecessary to prove a formal

agreement to participate in the conspiracy. See United

States v. Robinson, 470 F.2d 121, 123 (7th Cir. 1972).

Issues IV and V

The defendants contend that the trial court improperly

and prejudicially restricted the scope of their cross-exami-

nation of the two leading government witnesses. First,

they argue that it was an abuse of diseretion not to permit

them to cross-examine Leverence as to a conviction, oc-

curring 10 years earlier when he was 19 years old, based

on fraudulent use of a credit card, on the theory that it

‘‘involved dishonesty’’ and thus had a direct bearing on

his testimonial credibility. The trial court conducted a

App. 5

voir dire on the proposed testimony and ruled that it

should be excluded. Even though the Federal Rules of

Evidence are not yet in effect, we turn to Rule 609 for

guidance, as we have directed the district courts to do

(United States v. McCarthy, 445 F.2d 587, 590 (7th Cir.

1971)). We assume the conviction in question comes with-

in the scope of admissibility described in paragraph (a)

of Rule 609, but it would not be admissible, by reason of

paragraph (b) of that rule, because it occurred over 10

years ago, ‘‘unless the court determines, in the interests

of justice, that the probative value of the conviction .. .

substantially outweighs its prejudicial effect.’’ Because

of this presumption of inadmissibility for convictions more

than 10 years old, the fact that the offense was commit-

ted when Leverence was only 19 years old, and the ad-

mission of other, much more persuasive impeachment evi-

dence which made evidence of the early conviction mere-

ly cumulative in its impeachment effect, restriction of

cross-examination on this subject was not an abuse of dis-

cretion.

Defendants also complain that the trial court restricted

their cross-examination of Bodie. This claim is complete-

ly without merit. At no time did the trial court limit the

questioning of Bodie. Rather, as the transcripts show,

the defense attorneys made a tactical choice not to ask

the court to instruct the recalcitrant witness to answer the

question, and by not pressing the questioning on the sub-

ject the witness’ use of drugs any further.

Issue VI

Defendants argue that Count II of the indictment was

legally insufficient to charge a violation of the Hobbs Act

because it failed to allege the elements of a Hobbs Act

conspiracy. First, the indictment is said to have failed to

App. 6

allege a conspiracy aimed at obstructing commerce, as

opposed to extortion. This argument has been explicitly

rejected by this court in United States v. Pranno, 385 F.2d

387, 389-390 (7th Cir. 1967), cert. denied, 390 U.S. 944

(1968), which is controlling here. Second, defendants ar-

gue that the indictment was defective because it failed to

allege the commission of an overt act. By alleging speciii-

cally that defendants did ‘‘unlawfuli, obtain and cause

to be obtained . . . various sums of money, which money

was not due them... and was obtained by the defendants

from William Leverence, with his consent, said consent

being induced by fear of economic harm .. .,”’ the indict-

ment in effect, though not in as many words, alleged an

overt act. An allegation of an overt act is not required,

however, where the offense alleged is a section 1951 con-

spiracy. Defendants’ argument to the contrary has been

rejected by the Fifth Circuit in Ladner v. United States,

168 F.2d 771, 773 (5th Cir. 1948), cert. denied, 335 U.S.

827 (1948), which rests on a line of Supreme Court cases

holding that statutes ‘‘punish[ing] conspiracy ‘on the

eommon law footing’ ’’ do ‘‘not require an overt act for

the offense... .’’ Singer v. United States, 323 U.S. 338,

340 (1944); Nash v. United States, 229 U.S. 373, 378

(1913). These cases are controlling here.

Issues VII and VIII

In light of our holding on Issue VI, supra, that an overt

act need be neither alleged nor proven under section 1951,

we do not reach the questions raised by defendants’ re-

maining arguments that there was a fatal variance be-

tween the indictment and the instructions concerning the

necessity of proving an overt act and that a reversal on

Count II necessitates reversal of Count I as well.

AFFIRMED.

App. 7

APPENDIX B

In The

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

No. 74-1911

UNITED STATES OF AMERICA,

Plainxtiff-Appellee,

vs.

MICHAEL McCARTHY, RONALD UGINCHUS, and

HAROLD DURKEE,

Defendants-Appellants.

ORDER entered June 26, 1975, by Chief Judge Fair-

child and Circuit Judges Pell and Tone, denying petition

for rehearing and suggestion for rehearing in bance.

App. 8

APPENDIX C

(Summar, of Additional Facts)

James Bodie, an admitted ‘‘fruit hustler,’’’ for the past

ten years had regularly sold stolen merchandise to various

persons, (Tr. 80-83), including William Leverence. (Tr.

10, 35-36, 78, 83) Bodie admittedly engaged in the sale of

marijuana (Tr. 30, 87, cf. 117), and, at the time he testi-

fied? was on three years’ probation for aggravated bat-

tery * (Tr. 47, 220). Bodie had known defendant McCarthy

for at least six years, having from time to time supplied

officer McCarthy with information about criminal activi-

ties. (Tr. 36, 76, 993) Bodie had also been acting as an

informer for Federal Agent Cavanagh for about the past

ten years. (Tr. 17, 317, 423)

Bodie testified for the government that the name ‘‘ Wil-

liam Leverence’’ had first come up between himself and

defendant McCarthy some six years before 1973, when

1 Bodie testified that he would “hustle fruits” whom he met at the

Greyhound Bus Station in Chicago, by which he meant, according

to his testimony, that he would pretend to accompany men to a hotel

room for homosexual conduct, and then would rob them of watches,

jewelry and other valuables under threats of violence or public ex-

posure. (Tr. 85-86, 238-43). He sold these items to “fences,” such

as Leverence. (Tr. 78) Leverence knew of Bodie’s activities in this

regard. (Tr. 684-91)

2 Bodie admittedly received $290 from federal agents in connection

with his cooperation and testimony in this cause. (Tr. 37). Addi-

tionally, he received $60 in witness tees, plus $20 for each interview

at the federal building. (Tr. 164-66)

3 Moreover, Bodie had not reported to his probation officer since

September, 1973, although he was still required to do so by the

terms and conditions of his probation. (Tr. 226)

App. 9

Bodie had advised McCarthy that he (Bodie) sold some

of the items he stole to Leverence, a jeweler. (Tr. 8-10, 78)

Bodie mentioned Leverence’s name initially. (Tr. 78)

Bodie testified that from time to time during the next six

years, McCarthy repeatedly asked Bodie to help him ‘‘set

up’’ Leverence, by having Bodie sell Leverence some

‘thot’? property, then having McCarthy confront Lever-

ence with the prospect of arrest for receiving stolen prop-

erty or a payoff to the police. (Tr. 7-13, 48-49) During

the summer of 1973, Bodie was in need of money, and

asked McCarthy whether he still wanted to get Leverenc».

(Tr. 15-16; cf. Tr. 112-14) MeCarthy (according to Bodie)

responded in the affirmative, and they arranged to ‘‘set

up’? Leverence on September 3, 1973. (Tr. 116) Deten-

dant Uginchus was present but was not a party to the con-

versations between Bodie and McCarthy when this was

discussed. (Tr. 14-16)

Bodie then contacted federal agent Cavanagh by phone *

and related the plan to him (Tr. 17-19, 317-19) ; Cavanagh

asked that the meeting be postponed. (Tr. 19, 319) It was

eventually delayed until September 10, 1973. (Tr. 19-21,

143-45)

On September 10, 1973, federal agents (including Cava-

nagh) equipped Bodie with a concealed microphone and

radio transmitter, with the agents having a receiver and

recording device concealed in an attache case, which re-

ceiver was adjusted to pick up transmissions from the

transmitter on Bodie’s person. (Tr. 23, 147, 326-29)

Bodie met all three defendants at the restaurant above

the Greyhound Station (Tr. 24-27), and they proceeded to

4Apparently, Bodie’s anger at a remark (calling Bodie a “fucking

punk”) made by Uginchus precipitated Bodie’s contacting agent

Cavanagh. (Tr. 109, 111-12)

App. 10

the Mallers Building, wherein Leverence’s jewelry store

was located. (Tr. 28-30). Bodie had never seen petitioner

before. (Tr. 26-27) While Bodie went into Leverence’s

offices, federal agents waited outside, unseen, recording

the transmissions.’ (Tr. 336-37, 415-17) After some pre-

liminary negotiations, Leverence purchased a presumably

stolen camera lens from Bodie for $50 (Tr. 151-52), which

sum he paid by check to Bodie. (Tr. 29-30, 639) While

Bodie testified that defendants supplied ine item to be

sold to Leverence, (Tr. 15-16, 28), the officers all testified

that Bodie himself had supplied the property, having

turned it over to McCarthy and Uginchus previously for

that precise purpose. (Tr. 1011, 1026)

After Bodie emerged from Leverence’s office, defen-

dants entered and told Leverence he was in legal trouble

for having bought the lens from Bodie. (Tr. 31, 639-43)

Leverence, McCarthy and Durkee went into Leverence’s

private office, while Bodie and Uginchus waited in the

outer office. (Tr. 31-32, 645-49) (The conversation in this

private office is not corroborated by any tapes.)

Leverence testified that the officers told him he ‘‘ would

have to go downtown,’’ i.e., to the police station, to be

booked and charged with receiving stolen property unless

he gave them money. (Tr. 644-49) After an abortive at-

tempt to get money from his bank, (Tr. 652-53), Leverence

pretended to borrow $350 cash from another jeweler in

the Mallers building, but in fact, according to his testi-

5 Government’s Exhibits 2, the tape itself, and 3 (as revised), the

transcript thereof, were admitted upon stipulation of accuracy. (R.

44) The tape and transcript include conversations in the restaurant

before Bodie and defendants went to the Mallers Building, and in

Leverence’s outer office.

App. 11

mony, obtained it from his safe. (Tr. 34, 653-54) Lever-

ence gave petitioner an envelope containing $350 (Tr. 655)

which, according to Bodie, was divided among himself

(receiving $90) and the officers. (Tr. 34-35) Nothing re-

garding any ‘‘split’’ of the money appeared on the tapes.

(Tr. 405-06) Bodie was not under surveillance for at least

20 minutes after he left defendants and before he reported

to Cavanagh. He had had a drink at a bar in the interim.

(Tr. 35, 269-71, 437-39) Bodie turned $90 over to Cava-

nagh. (Tr. 338, 449) Cavanagh did not search Bodie for

any additional money. (‘t'r. 422-23) According to defen-

dants, 100% of the money was given to Bodie, (Tr. 1036-

38, 1148-49, 1208-09), since their interest was solely in

gaining Leverence’s future cooperation as an informer

concerning various burglaries and receipt of stolen prop-

erty involving persons in the Mallers Building. (Tr. 1031-

32, 1068, 1130, 1203-09).

Substantial uncontroverted evidence adduced by the

prosecution as well as the defense established that law

enforcement officers’ reliance upon undercover civilian in-

formants is a commonly accepted law enforcement prac-

tice, that developing persons to act in such capacity is

frequently a necessary part of police work, and that the

need to rely upon such individuals is particularly great in

order to solve ‘‘non-eyewitness’’ crimes such as burglary.

(Tr. 519, 546-47, 936-79) °

The court refused to permit defense counsel to cross-

examine Leverence concerning his prior conviction in the

State of California for fraudulent use of credit cards. (Tr.

617-29, 662-73)

6 All cited testimony in this regard is from witnesses other than

defendants.

App. 12

The court interrupted defense cross-examination of

Bodie regarding his immediate past use of drugs and con-

trolled substances * (Tr. 157), and Bodie refused to answer

pertinent questions posed later during cross-examination

regarding his present and immediate past use of various

‘thard’’ drugs.® (Tr. 244)

All defendants testified. McCarthy’s testimony was that

Bodie instigated the events concerning Leverence, and

that Bodie furnished the merchandise sold to Leverence.

(Tr. 1014-1153) All the officers testified that their purpose

was not to obtain any money from Leverence, but solely

to gain information regarding criminal activity known to

Leverence in and about the Mallers Building, (Tr. 1031-32,

1068, 1130, 1203-09), particularly concerning a large jewel-

ry theft therein, to which still-open burglary investigation

McCarthy had been assigned. (Tr. 987-90, 999-1000) All

defendants testified that Bodie alone got all the money

which had been obtained from Leverence, and put it in

his (Bodie’s) shoe. (Tr. 1036, 1148, 1153, 1209-11) While

Uginchus had been in McCarthy’s company during some

7After Bodie had admitted previous marijuana use, Bodie an-

swered defense counsel’s question, “When did you stop [smoking

marijuana],” by stating, “That is my own personal business and

none of yours.” (Tr. 157) To: ‘When is the last time you used

marijuana,” Bodie replied, “It is none of your business.” (Tr. 157)

The court then terminated this line of questioning sua sponte.

(Tr. 157)

8Q. [by defense counsel]: Did you ever use any other form

of drug or narcotic? Did you ever use speed?

A. [Bodie]: Whatever I used, it doesn’t make any difference.

©. My question simply is—

A. I think what I have done in that field is my business. If I

have done drugs, it is my business. It is not anyone’s busi-

ness. It is my own personal business.” (Tr. 244)

App. 13

of the preliminary discussions with Bodie (Tr. 14-6, 1007-

08), petitioner, who coincidentally was at the police station

when McCarthy and Uginchus were about to leave to keep

their appointment with Bodie on September 10, 1973, just

happened to go along to assist them in developing Lever-

ence as an informer. (Tr. 1023-24, 1133, 1197-99) McCarthy

and Uginchus were assigned to Area 1 Burglary, while

petitioner was assigned to Area 1 Robbery, different units

of the Chicago Police Department located in the same

building (Tr. 1197) at the time of the events in question.

(Tr. 986, 1115, 1187). A number of character witnesses

testified for each defendant. (See Tr. 890-979)