Petition — Callahan v. United States

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Supreme Court of the Buited States

Octoper Term, 1974

JEROME V. CALLAZAN,

Petitioner,

vB.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A 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

Constitutional Provisions, Statutes and Rules Involved

Statement of the Case ..... —

Reasons for Granting the Writ .......

1. When petitioner indicated his desire to testify

on one count but not on the other, he was prejudiced

and deprived of a fair trial by the trial court’s refusal

to sever the counts for trial pursuant to F.R.Cr.P. 14.

Moreover, petitioner has impermissibly been required

to forfeit one constituticna! right, t.e., right to a fair

trial, in order to exercise another constitutional right,

i.e., right to present a defense, in conflict with prin-

ciples announced by this Court in Simmons v. United

fA RRR RES I RRA ee

2. The evidence was insufficient to prove ‘‘extor-

tion.’’ To uphold petitioner’s conviction for affecting

commerce by extortion under color of official right,

absent sufficient proof of extortion, requires an uncon-

scionable overextension of the Hobbs Act and of fed-

eral jurisdiction. Certiorari should be allowed to dam

the flood of Hobbs Act prosecutions inundating the

federal courts based upon conduct which, if prosecuta-

ble at all, should be prosecuted strictly on a local level

3. Petitioner was prejudiced and deprived of a fair

trial where the court permitted the prosecution to in-

troduce evidence—absolutely essential to its case—at

PAGE

variance with the allegations of the indictment and with

the bill of particulars, which evidence also was in-

competent and prejudicial as proof of a crime prior to

the indictment period and prior to the period as limited

by the bill of particulars, and as to which the statute

of limitations had run. This Court should review the

Seventh Circuit’s unprecedented relaxation of the lim-

iting effect both of a bill of particulars pursuant to

F.R.Cr.P. 7(f) and of the statute of limitations, 18

U.S.C. 3282, particularly since the instant decision

conflicts with principles concerning the latter an-

nounced in Toussie v. United States, 397 U.S. 112 ....

4. Petitioner was deprived of his right to a fair

trial by the prosecution’s prejudicial closing argu-

ment, which:

A. improperly referred to and heavily relied upon

the erroneously admitted evidence at issue in

Point 3, supra; and

B. incredibly stated that defense counsel had

argued—when he had not—that petitioner was

SII ORIENT <cisssiscsenhinieiacisenitinsiedpngubibacteibsnimeansitiadine

5. Petitioner was prejudiced by the court’s improp-

er instructions to the jury and by its refusal to in-

struct per defense requests, in the following respects:

A. Refusal to instruct concerning bribery and mere

SE AE I. eieecsistitispatitectllanienicsninlinenaiinn

B. Refusal to give accomplice testimony instruction

C. Instruction regarding testimony of immunized

IIE schiieabhshaicradiniinsiadieiaispeiinbdeiiasieemenisinisniniinpiniataiibeiitdes

OE TET rm L —_

saben de. aah aie aeeliadieteiie|

ili

PAGE

The court’s erroneous refusal to instruct on petition-

er’s theory of the case effectively precluded petition-

er from presenting said theory to the jury, in deroga-

tion of petitioner’s due process rights and of his

Sixth Amendment right to present evidence ................ 36

6. The trial court committed prejudicial error by

instructing the jury, in advance of any specific request

by the jury, that the court would not consider any jury

request during deliberations for portions of the evi-

dence presented at trial. Such instruction constituted

an impermissible abdication of judicial responsibility

to exercise judicial discretion upon any such request

if and when it may have arisen, effectively precluding

the jury in advance from making any such request.

Certiorari should be allowed so that this Court, in the

exercise of its supervisory powers, may prevent trial

courts from following this impermissible procedure ... 38

a Hh REE RE I ES STR Se oe 42

Appendix A—Order of the Court of Appeals

entered May 5, 1975 ounce App. 1

Appendix B—Order denying Rehearing in the

Court of Appeals entered Aug. 7,

UNI ‘nibundiandcdhescemetihienstanaptmaniesnatitatiunessisitl App. 11

AUTHORITIES CITED

Cases

Berger v. United States, 295 U.S. 78 (1935) ............ 25

Bollenbach v. United States, 326 U.S. 607 (1946) ...... 28

Briscoe v. United States, 391 F.2d 984 (D.C. Cir. 1968) 41

Cash v. Culver, 358 U.S. 633 (1959) ........22......-.-eceeeeee 32

Chambers v. Mississippi, 410 U.S. 284 (1973) ~......... 12

Chapman v. California, 386 U.S. 18 (1967) ....... .26, App. 13

Cross v. United States, 335 F.2d 987 (D.C. Cir.

WIDE) ceececcccnsesssssnsesessssnteonansiuietioniniee 11, 13, 14

Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964) .. 12,

13, 20

Dunn v. United States, 318 F.2d 89 (5 Cir. 1963) ........ 32

Easley v. United States, 261 F.2d 276 (5 Cir. 1958) .. 39

Holt v. Virginia, 381 U.S. 131 (1965) ..000000 ee. 12, 37

Hull v. United States, 324 F.2d 817 (5 Cir. 1963) ........ 32

Kansas City Star Co. v. United States, 240 F.2d 643

C0 SP 5 eno 27

Kotteakos v. United S: ates, 328 U.S. 750 (1946) ..25, App. 13

Kuta v. United States, cert. pet. No. 75-307, filed Au-

gust 28, 1975 (7 Cir. opinion not yet reported) ... 17

Levine v. United States, 261 F.2d 747 (D.C. Cir. 1958) 36

People v. Autman, 58 Ill.2d 171, 317 N.E.2d 570 (1974) 40

People v. Queen, 56 Ill.2d 560, 310 N.E.2d 166 (1974) .. 40

Phelps v. United States, 252 F.2d 49 (5 Cir. 1958) .... 32

Sears v. United States, 343 F.2d 139 (5 Cir. 1965) ...... 39

Simmons v. United States, 390 U.S. 377 (1968) ....... 2,9, 13

PAGE

Staszcuk v. United States, cert. pet. No. 74-1579, filed

June 13, 1975; reported (in part) at 502 F.2d 874

coos sldtieieeumeanenviinensene 17

Stirone v. United States, 361 U.S. 212 (1960) 000... 22

Toussie v. United States, 397 U.S. 112 (1970) ....2, 18, 20, 23

United States v. Bass, 404 U.S. 336 (1971) ............... 17

United States v. Braasch, 505 F.2d 139 (7 Cir.

EES 13, 29, 34

United States v. Brown, 470 F.2d 285 (2 Cir. 1972) ........ 40

United States v. Bryant, 442 F.2d 775 (D.C. Cir. 1971) 40

United States v. Carter, 475 F.2d 349 (D.C. Cir. 1973) 12

United States v. Daniels, 446 F.2d 967 (6 Cir. 1971) .... 41

United States v. Dellinger, 472 F.2d 340 (7 Cir. 1972) .. 39

United States v. Enmons, 410 U.S. 396 (1973) —........ 17

United States v. Fierson, 419 F.2d 1020 (7 Cir. 1969) .. 20,

22, 23

United States v. Grimes, 413 F.2d 1376 (7 Cir. 1969) ... 36

United States v. Hartford, 489 F.2d 652 (5 Cir. 1974) .. 41

United States v. Haskins, 345 F.2d 111 (6 Cir. 1965) .... 22

United States v. Hurst, 436 F.2d 1092 (5 Cir. 1971) ... 39

United States v. Jackson, 257 F.2d 41 (3 Cir. 1958) .. 39, 40

United States v. Kahn, 472 F.2d 272 (2 Cir. 1973) ... 29

United States v. Neff, 212 F.2d 297 (3 Cir. 1954) ... 21

United States v. Phillips, 217 F.2d 435 (7 Cir. 1955) . 28,

36, 37

United States v. Powell, 487 F.2d 325 (4 Cir. 1973) ...... 39

United States v. Quinn, 365 F.2d 256 (7 Cir. 1966) .... 10

United States v. Reid, 410 F.2d 1223 (7 Cir. 1969) ....34, 35

PAGE

United States v. Wiley, 267 F.2d 453 (7 Cir. 1959) ... 41

Washington v. Texas, 388 U.S. 14 (1967) -................ 12, 37

Woosley v. United States, 478 F.2d 139 (8 Cir. 1973) .. 41

Other Authorities

United States Constitution, Amendment 5 ............ 4, 34, 37

United States Constitution, Amendment 6 ............ 3, 4, 21,

26, 36, 37

I (Eee 4, 7, 16, 17, 29, 30, 36

DIET GID. cnincrenssssetissennsiiaiiiaematininenniinhiennneitiiiaiiin 40

Se ey, SED —_<onsibisinsinintimivapennanceiiinpnaniebieiiaiiciganiiiins 2

| .2, 5, 18, 19

Es FD cectsstintennnacennstianeiiiaiial 2, 5,18

ND cennneenseniemniimatemmnsinngteial 5, 9, 10

SPITS .TEUE scsvemnanseosenenascntinnasinumiienstianstinansitil 2, 5,9, 10, 13

Sy SIITEED - cccncersnnmnnssisinnnaienanansiniiinisesiimmensia 40

Supreme Court Rule 22.2 ................. siiaerammamianiaiatiniuaiin 2

Chap. 38, sec. 33-1, Ill. Rev. Stat. .....2..2.2.......ecceccecceoeee 6,17

Chap. 38, sec. 33-3, Ill. Rev. Stat. ...........2..2.......-20--- 6, 17

Chap. 110A, sec. 451(a), Ll. Rev. Stat., Sup. Ct. Rule

GD ccninsecccnsnsssinansatssniisersesnsapintpanriampssiniiaaaniamanticidions 7

ar Ge, Be GE ceeiecestmenel 6, 29, 32

Devitt & Blackmar, Inst. No. 62.09 oe 28

LaBuy, Manual on Jury Instructions in Federal

Se GE GD cecentenntecereesmnntinatinnnenn 31

Ey Bs Ts Ge cccceicncenntenienicennmnaianies 31

Lt A LLL

rer Re me ee

SY ery REET

Iu the

Supreme Court of the United States

Octoser Term, 1974

No.

JEROME V. CALLAHAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Jerome V. Callahan, prays that a writ of

certiorari be issued to review the judgment of the United

States Court of Appeals for the Seventh Circuit.

Order Below

The order of the Court of Appeals, unpublished per

Seventh Circuit Rule 28, is reprinted as Appendix A,

infra,

Jurisdiction

The order of the Court of Appeals was entered on May

5, 1975. Petitioner's petition for rehearing and suggestion

for rehearing in banc, timely filed, was denied on August

7, 1975. (App. B) The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. 1254(1) and Rule 22.2 of the Rules

of this Court.

Questions Presented

1. Where petitioner indicated his desire to testify on

one count but not on the other, was he not prejudiced and

deprived of a fair trial by the trial court’s refusal to sever

the counts for tria] pursuant to F.R.Cr.P. 14? Moreover,

has not petitioner impermissibly been required to forfeit

one constitutional right, 1.e., right to a fair trial, in order

to exercise another constitutional right, i.e., right to pre-

sent a defense, in conflict with principles announced by

this Court in Simmons v. United States, 390 U.S. 377?

2. Does it not require an unconscionable overextension

of the Hobbs Act and of federal jurisdiction to uphold

petitioner’s conviction for affecting commerce by extor-

tion under color of official right, absent sufficient proof of

‘*extortion’’?

3. Where the court permitted the prosecution to intro-

duce evidence—absolutely essential to its case—at vari-

ance with the allegations of the indictment and with the

bill of particulars, which evidence also was incompetent

and prejudicial as proof of a crime prior to the indictment

period and prior to the period as limited by the bill of

particulars, and as to which the statute of limitations had

run, was not petitioner thereby prejudiced and deprived

of a fair trial? Should not this Court review the Seventh

Circuit’s unprecedented relaxation of the limiting effect

both of a bill of particulars pursuant to F.R.Cr.P. 7(f),

and of the statute of limitations, 18 U.S.C. 3282, particu-

larly since the instant decision conflicts with principles

concerning the latter announced in Toussie v. United

States, 397 U.S. 112?

4. Was not petitioner deprived of his right to a fair

trial by the prosecution’s prejudicial closing argument,

which:

A. improperly referred to and heavily relied upon

the erroneously admitted evidence at issue in

Question 3, supra; and

B. incredibly stated that defense counsel had ar-

gued—when he had not—that petitioner was

guilty of bribery?

5. Was not petitioner prejudiced by the court’s im-

proper instructions to the jury and by its refusal to in-

struct per defense requests, in the following respects:

A. refusal to instruct concerning bribery and mere

receipt of gratuity;

B. refusal to give accomplice testimony instruc-

tion;

C. instruction regarding testimony of immunized

witness ;

and, moreover, did not the court’s erroneous refusal to

instruct on petitioner’s theory of the case effectively pre-

clude petitioner from presenting said theory to the jury, in

derogation of his due process rights and of his Sixth

Amendment right to present evidence?

6. Did the trial court commit prejudicial error by in-

structing the jury, in advance of any specific request by

the jury, that the court would not consider any jury re-

quest duriug deliberations for portions of the evidence

presented at trial; and did not such instruction constitute

an impermissible abdication of judicial responsibility to

exercise judicial discretion upon any such request if and

when it may have arisen, effectively precluding the jury

in advance from making any such request?

Constitutional Provisions, Statutes and Rules Involved

The Fifth Amendment to the United States Constitution

provides, in pertinent part:

‘*No person shall be held to answer to a[n] .. . in-

famous crime, unless on a presentment or indictment

of a Grand Jury, ...nor shall any person be deprived

of life, liberty or property, without due process of

law;...’’

The Sixth Amendment to the United States Constitution

provides, in pertinent part:

‘*In all criminal prosecutions, the accused shall

enjoy the right ... to be informed of the nature and

cause of the accusation; ... [and] to have compulsory

process for obtaining witnesses in his favor .. .’’

Section 1951, Title 18, United States Code, provides in

pertinent part:

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

lays, or affects commerce or the movement of any

article or commodity in commerce, by robbery or ex-

tortion or attempts or conspires so to do, or commits

or threatens physical violence to any person or prop-

erty in furtherance of a plan or purpose to do any-

thing 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—

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

property from another, with his consent, induced 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 Posses-

sion of the United States; all commerce between any

point in a State, Territory, Possession, or the Dis-

trict 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 jurisdic-

tion.

@ co] @99

Section 3282, Title 28, United States Code, provides:

‘*Except as otherwise expressly provided by law,

no person shall be prosecuted, tried, or punished for

any offense, not capital, unless the indictment is found

or the information is instituted within five years next

after such offense shall have been committed.”’

Rule 7(f) of the Federal Rules of Criminal Procedure

(Title 18, United States Code), provides in pertinent part:

‘*The court may direct the filing of a bill of par-

ticulars ...’’

Rule 8(a) of the Federal Rules of Criminal Procedure

(Title 18, United States Code), provides:

‘*Joinder of Offenses. Two or more offenses may

be charged in the same indictment or information in

a separate count for each offense if the offenses

charged, whether felonies or misdemeanors or both,

are of the same or similar character or are based on

the same act or transaction or on two or more acts

or transactions connected together or constituting

parts of a common scheme or plan.’’

Rule 14 of the Federal Rules of Criminal Procedure

(Title 18, United States Code), provides in pertinent

part:

‘Tf it appears that a defendant .. . is prejudiced

by a joinder of offenses .. . in an indictment... or

by such joinder for trial together, the court may order

an election or separate trials of counts, ... or provide

whatever other relief justice requires .. .’’

Chapter 38, Section 33-1, Illinois Revised Statutes, pro-

vides in pertinent part:

**$ 33-1. Bribery.

A person commits bribery when:

(a) With intent to influence the performance of any

act related to the employment or function of any pub-

lie officer, public employee or juror, he promises or

tenders to that person any property or personal ad-

vantage which he is not authorized by law to accept;

(d) He receives, retains or agrees to accept any

property or personal advantage which he is not au-

thorized by law to accept knowing that such property

or personal advantage was promised or tendered with

intent to cause him to influence the performance of

any act related to the employment or function of any

public officer, public employee or juror;.. .’’

Chapter 38, Section 33-3, illinois Revised Statutes, pro-

vides in pertinent part:

**§ 33-3. Official Misconduct.

A public officer or employee commits misconduct

when, in his official capacity, he commits any of the

following acts:

e * a

(d) Solicits or knowingly accepts for the perfor-

mance of any act a fee or reward which he knows is

not authorized by law.’’

Instruction No, 21.07, Illinois Pattern Jury Instructions

in Criminal Cases (generally applicable in State criminal

Se es ee eee ee =~

trials in Illinois via Illinois Supreme Court Rule 451(a),

Chap. 110A, Sec. 451(a), Ill. Rev. Stat.), provides in perti-

nent parts as follows: *

‘‘A person commits the crime of bribery who,

[1] promises or tenders any [property—personal

advantage] to a |public officer—employee-juror] with

intent to influence the performance of any act related

to the |officer’s—employee’s juror’s] employment or

function ;

e a e

[4] [receives—retains—agrees to accept] any [prop-

erty—personal advantage] knowing that the [prop-

erty—personal advantage] [was tendered—promised ]

with intent to cause him to influence the performance

of any act related to the employment or function of a

[public officer—employee-juror] ;

7 es ®

{A public employee is a person who is authorized

to perform an official function on behalf of, and is paid

by (any political subdivision of) the State.]”’

STATEMENT OF THE CASE

Petitioner, Jerome V. Callahan, was convicted of having

violated the Hobbs Act, 18 U.S.C. 1951, in that he obstruct-

ed commerce by extortion by obtaining quantities of liquor

from Robert J. Medow, operator of a liquor store, by

wrongful use of his position as a Chicago police officer,

from January, 1969 to July, 1971. (R. 1)* Conviction was

* The brackets are included in the original; inapplicable portions

within the brackets are to be omitted from instructions given.

'“R.” refers to the Record on Appeal, and “Tr.” to the Tran-

script of Proceedings at trial, both filed with the Court of Appeals in

No. 74-1618.

upon Count ITI of a two-count indictment (73 CR 890).?

Petitioner’s pre-trial motion to sever the counts for trial

(R. 12) was denied. (R. 21) Petitioner’s motion to limit

the evidence to the allegations of the indictment and the

bill of particulars (R. 48) was denied. (R. 50) The court

denied petitioner’s motion for acquittal at the close of the

government’s case and at the close of all the evidence.

(R. 55)

The jury found petitioner not guilty on Count I and

guilty on Count LI. (R. 56)

Defendant’s post-trial motions in arrest of judgment

(R. 59) and for judgment of acquittal notwithstanding the

verdict or for new trial (R. 60) were denied (R. 61), and

the court sentenced him to three years probation with the

first 90 days in custody. (R. 61)

A summary of the evidence is set forth as Appendix C,

infra. Factual details necessary to petitioner’s arguments

are fully set forth during the course of this Petition where

pertinent, and are not repeated herein to avoid unneces-

sary duplication.

* The jury acquitted petitioner of a separate Hobbs Act accusa-

tion, concerning a different tavern owner, charged in Count I, at

petitioner’s joint trial upon both counts. (R. 56)

Count I charged that petitioner obstructed commerce by extortion,

in that he obtained $750 from Joseph Sannasardo, owner of Sano’s

Liquors, by threatening to use his position as a Chicago Police Officer

to obstruct Sano’s business in January, 1969. Count II charged that

petitioner obstructed conmmerce by extortion, in that he obtained cer-

tain quantities of liquor from Robert J. Medow, operator of South-

port Crown Liquors, Inc., by wrongful use of his position as a

Chicago Police Officer with Medow’s consent, said consent being

induced under color of official right, from January, 1969 to July,

1971. (R. 1)

—

ES (SA TS SNS

REASONS FOR GRANTING THE WRIT

When petitioner indicated his desire to testify on one

count but not on the other, he was prejudiced and deprived

of a fair trial by the trial court’s refusal to sever the counts

for trial pursuant to F.R.Cr.P. 14. Moreover, petitioner has

impermissibly been required to forfeit one constitutional

right., ie., right to a fair trial, in order to exercise another

constitutional right, i.e., right to present a defense, in con-

flict with principles announced by this Court in Simmons

v. United States, 390 U.S. 377.

Petitioner’s motion for severance of the counts for trial’

(R. 12) was denied. (R. 21) The Seventh Circuit agreed

that this ruling was proper. (App. A, pp. 3-5)

3 Petitioner’s motion for severance was alternatively based upon

Federal Rules of Criminal Procedure 8(a) and 14 (set forth at pp.

5-6, supra). While arguing that joinder was improper under Rule

8(a), he argued in the alternative that, even if joinder were iuitially

proper, severance should be granted pursuant to Rule 14 since join-

der of the counts for trial under the circumstances was prejudicial.

Rule 8(a) defines the outer limits of permissible joinder of offenses,

while Rule 14 requires severance for trial even of offenses technically

joinable under Rule 8(a) if joinder is prejudicial.

As to the charges alleged in Counts I and II against petitioner,

only that portion of Rule 8(a) permitting joinder of offenses of the

same or similar character is arguably applicable herein, since clearly

they are neither based on the same act or transaction, nor are they

part of a common scheme or plan.

(footnote continued)

Assuming, arguendo, that joinder was initially proper

under F.R.Cr.P. 8(a),* still there was prejudice in the

joinder, requiring severance pursuant to F.R.Cr.P. 14, for

petitioner asserted below that he desired to testify on one

count but not on the other. (R. 17, p. 4) Even though the

jury acquitted petitioner upon one of the two counts, this

does not obviate the prejudice incurred as to the count

(footnote continued)

That each count charges an alleged violation of the Hobbs Act

does not in and of itself render the offenses charged of “the same

or similar character.” In United States v. Quinn, 365 F.2d 256,

263-64 (7 Cir. 1966), the court held that two counts of banking law

violations arising out of one set of circumstances were not properly

joinable, under Rule 8(a), with two other counts of banking law

violations under the same statutes as the first two but arising out of

a different set of circumstances.

Here, although violations of a single statute are charged, the al-

leged offenses are wholly dissimilar in the following respects:

(1) Two separate alleged victims are involved; (2) The objects

of the alleged offenses are dissimilar (money in Count I, liquor in

Count II); (3) Count I alleges a single, isolated act on a single

occasion in January, 1969, while Count II alleges that the offense

was a continuing one between January, 1969 and June, 1971; (4)

Count I alleges extortion both by fear and under color of official

right, while Count II alleges the extortion was committed solely

under color of official right. Under the principles which rendered

the two pairs of offenses non-joinable in Quinn, supra, severance

was mandatory herein pursuant to Rule 8(a).

* But see petitioner’s argument, footnote 3, supra, rejected by the

Court of Appeals. (App. A, pp. 3-4)

upon which he was convicted; for, by effectively being pre-

cluded from testifying in his own defense upon Count Il—

for purely practical reasons—he was embarrassed, thwart-

ed and confounded in his joint defense of the two charges

simultaneously. Even acquittal of one charge does not

vitiate the prejudice which infected the other. Cross v.

United States, 335 F.2d 987 (D.C. Cir. 1964).°

And, irrespective of the prejudice due to petitioner’s

desire to defend each of the two charges in an indepen-

dent and distinct manner, there is the prejudice which is

5 The Court in Cross, reversing defendant’s conviction on one

count due to prejudicial joinder even though the jury acquitted him

upon the other count, where he had expressed a desire to testify

upon one count but not the other, characterized the dilemma con-

fronting such a defendant (like petitioner in the case at bar) as

follows :

“Prejudice may develop when an accused wishes to testify on

one but not the other of two joined offenses which are clearly

distinct in time, place and evidence. His decision whether to

testify will reflect a balancing of several factors with respect to

each count: the evidence against him, the avai‘ability of defense

evidence other than his testimony, the plausibility and substan-

tiality of his testimony, the possible effects of demeanor, im-

peachment, and cross-examination. But if the two charges are

joined for trial, it is not possible for him to weigh these factors

separately as to each count. If he testifies on one count, he runs

the risk that any adverse effects will influence the jury’s con-

sideration of the other count. Thus he bears the risk on both

counts, although he may benefit on only one. Moreover, a de-

fendant’s silence on one count would be damaging in the face

of the express denial of ihe other. Thus he may be coerced

into testifying on the count upon which he wished to remain

silent. It is not necessary to decide whether this invades his

constitutional right to remain silent, since we think it consti-

tutes prejudice within the meaning of Rule 14.” Cross v. United

States, 335 F.2d 987, 989 (D.C. Cir. 1964). (Emphasis added. )

always inherent in the jury’s hearing evidence of two

distinct offenses at a single trial: that the jury must have

regarded all the evidence cumulatively, being influenced

by the sum total of all the evidence,® United States v. Car-

ter, 475 F.2d 349 (D.C. Cir. 1973); that they may use evi-

dence pertaining to each of the offenses improperly to in-

fer a criminal disposition to commit the other, Drew v.

United States, 331 F.2d 85, 88 (D.C. Cir. 1964); and ‘‘a

less tangible, but perhaps equally persuasive, element of

prejudice may reside in a latent feeling of hostility en-

gendered by the charging of several crimes as distinct

from only one.’’ Ibid. |

Here, rather than being coerced into testifying upon

Count I when he desired to testify only upon Count II,

petitioner, faced with the court’s requirement that he be

tried on both counts together, chose what he believed to

be the lesser of the evils: he did not testify upon either

count, despite his desire to offer his own testimony on his

behalf as to Count II. In effect, the trial court’s ruling,

approved by the Seventh Circuit, forced petitioner to make

a constitutionally impermissible choice: give up his con-

stitutional right to a fair trial upon Count I in order to

exercise his equally important constitutional right to pre-

sent evidence in his defense, (7.e., his testimony), upon

Count II. The choice he actually made was to forfeit the

right to present defense evidence.’

® See App. C, infra.

7 The Constitution guarantees a defendant in a criminal case the

right to present evidence in his own behalf. Holt v. Virginia, 381

U.S. 131, 136 (1965); Washington v. Texas, 388 U.S. 14, 17-19

(1967) ; Chambers v. Mississippi, 410 U.S. 284, 294-95 (1973).

This Court has held that putting a defendant to such

a choice between two constitutional rights is impermis-

sible:

‘*|W Je find it intolerable that one constitutional right

should have to be surrendered in order to assert an-

other.’’ Simmons v. United States, 390 U.S. 377, 394

(1968).

Once petitioner made the good faith assertion of his

wish to testify on only one of the two counts, and nothing

appearing to the contrary, the Cross principle, supra, con-

sidered in context with the other authorities herein, re-

quired severance under Rule 14. The Seventh Circuit’s

holding to the contrary, (App. A, p. 5), is clearly errone-

ous, for the prejudice is apparent in the factual context of

this case. (See App. C, infra.)

Certiorari should be allowed, so that the Court may

express itself regarding the fundamental fairness require-

ments of due process of law as embodied in F.R.Cr.P. 14

8 The Court of Appeals ignored petitioner’s additional argument

that the countervailing consideration, (the economy of a single trial),

see Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964), and

United States v. Braasch, 505 F.2d 139, 150 (7 Cir. 1974), which may

be weighty in a multi-count, multi-defendant case, is plainly inap-

plicable in such a case as this, involving but a single defendant and

two relatively simple charges.

Nor has it answered petitioner’s suggestion that in the context of

being one of a large group of highly publicized “police graft” and

“official corruption” cases recently tried within this District, and

because of the general community awareness of the U.S. Attorney’s

high record of convictions in his continuing war on local official cor-

ruption, what may not necessarily amount to that degree of prejudice

necessitating Rule 14 severance in a “garden variety” case does re-

quire such severance where a single high-ranking Chicago police

officer is charged with two unrelated accusations of extortion. (Pe-

titioner was a Police Captain and Watch Commander. See Tr. 258.)

where a defendant wishes to testify on only one of two

counts set for joint trial. The Seventh Cireuit’s opinion

does nothing to clarify this important issue which obvious-

ly arises frequently in federal criminal trials.

Moreover, this Court should grant review because the

instant opinion appears to conflict, not only with a holding

of the District of Columbia Circuit,’ but also with prin-

ciples heretofore announced by this Court.

The evidence was insufficient to prove “extortion.” To

uphold petitioner’s conviction for affecting commerce by

extortion under color of official right, absent sufficient

~roof of extortion, requires an unconscionable overexten-

sion of the Hobbs Act and of federal jurisdiction. Cer-

tiorari should be allowed to dam the flood of Hobbs Act

prosecutions inundating the federal courts based upon con-

duct which, if prosecutable at all, should be prosecuted

strictly on a local level.

The evidence pertaining to the alleged extortion in

Count I, of which petitioner stands convicted, fully set

forth in App. C, pp. App. 12-18, infra, is not repeated at

length herein.

The testimony of Robert J. Medow, alleged ‘‘victim’’ of

the alleged extortion (Tr. 326-61), together with that of

William Nass, Medow’s employee (Tr. 362-68), does not

establish that petitioner committed extortion; rather, it

clearly demonstrates that, at worst, what took place was

receipt by petitioner of gratuitous gifts of various quanti-

ties of liquor from Medow, given to petitioner due to

Medow’s desire to retain petitioner as a friend and to

® Cross v. United States, cited and discussed in footnote 5, supra.

ensure adequate police protection for Medow’s trucks and

substantial inventory—not ‘‘protection’’ in any sinister

sense of graft and failure to arrest for liquor law viola-

tions, but protection in the sense of assuring police sur-

veillance to prevent thefts by third persons. (Tr. 357-58)

The lack of any extortionate character adhering to peti-

tioner’s receipt of the liquor is evident from such other

factors as:

(1) Medow continued to give petitioner liquor for a

considerable period of time after Medow ceased

his previous practice of illegally selling liquor to

taverns—which was the government’s theory of

the case, that is, that Medow gave the liquor to

petitioner to persuade petitioner not to arrest

him for such illegal sale of liquor. (Tr. 360-61;

345-46 )

(2) Medow instructed Nass to give petitioner liquor

if and when petitioner came into the store in

Medow’s absence; Nass, a long-time and trusted

employee of Medow (Tr. 342, 367-68) had no

knowledge of any wrongdoing by petitioner with

relation to Medow and/or the gifts of liquor. (Tr.

362-68)

(3) Medow had unsuccessfully tried to intercede with

petitioner on behalf of a bar-owner friend of

Medow’s. (Tr. 346-47)

(4) Medow was invited to a party at petitioner’s

home, and provided decorations for said party.

(Tr. 353-54)

(5) In October, 1970, (during the indictment period),

petitioner purchased champagne for his daugh-

ter’s wedding from Medow, who helped him select

a good champagne and gave him a good price (Tr.

345-48); Medow’s close, friendly relationship with

petitioner is further evident from the fact that he

knew that petitioner’s intended son-in-law was

Jewish. (Tr. 348)

(6) Petitioner never threatened Medow during the

indictment period (Tr. 354); nor did he at any

time threaten to put Medow out of business or

take his license (Tr. 356); nor did Medow ever

ask petitioner for any improper act. (Tr. 351)

Moreover, Medow testified that he had made various

other gifts to other Chicago police officers in the past, both

at Christmas time and on other occasions, both of cash and

liquor. (Tr. 349) This too cuts against the government’s

theory that his gifts of liquor to petitioner were the re-

sult of extortion.

Rather than demonstrating extortion, the record reflects

that Medow desired to have and keep petitioner as a friend,

for obvious reasons, and that this and only this truly mo-

tivated his continuing gifts of liquor to petitioner. Nothing

that petitioner ever said or did changed this picture.

(See Tr. 354, 356) For Medow testified:

‘*(I}f you are a retail liquor license holder in Chicago,

Police Captains are very important. If I had a choice

of having one as a friend or enemy, it would be better

to have a friend. I don’t know what the Captain in-

tended to do, but that is the way I felt.’’ (Tr. 340)

And again, on cross-examination, Medow reiterated his

desire to have petitioner as a friend, given the choice.

(Tr. 351)

This evidence clearly fails to establish ‘‘extortion’’ as

defined by the Hobbs Act, 18 U.S.C. 1951(b)(2). Accord-

ingly, the trial court should have granted petitioner’s mo-

tion for directed verdict for insufficiency of the evidence.

(R. 55) The Seventh Circuit deemed the evidence suffi-

cient. (App. A, pp. 9-10)

If petitioner was to be prosecuted, he should have been

prosecuted under applicable local law.’®

This case represents but one in a series of recent cases

emanating from the Seventh Circuit wherein the Hobbs

Act has been used to reach so-called local official corrup-

tion*’ under circumstances where federal jurisdictional

concepts must be stretched to the breaking point to justify

prosecution.”

To uphold petitioner’s conviction herein requires an un-

warranted overextension of the Hobbs Act and of federal

jurisdiction, contrary to principles involving the federal-

state balance enunciated by this Court in United States v.

Bass, 404 U.S. 336, 349 (1971), recently reaffirmed in

United States v. Enmons, 410 U.S. 396, 411-12 (1973).

Certiorari should be allowed so that this Court may have

an opportunity to dam the flood of Hobbs Act prosecutions

inundating the federal courts based upon conduct which,

if prosecutable at all, should be prosecuted strictly on a

local level.

10 Petitioner could be prosecuted under applicable Illinois law

either for Bribery, chap. 38, sec. 33-1(d), or for Official Misconduct,

chap. 38, sec. 33-3 (see p. 6, supra for applicable sections).

11 See footnote 8, supra.

‘2 See, e.g., the pending Petitions for Certiorari in Kuta v. United

States, No. 75-307, filed August 28, 1975, (not yet reported), and

Staszcuk v. United States, No. 74-1579, filed June 13, 1975, reported

(in part) at 502 F.2d 874 (7 Cir. 1974).

Petitioner was prejudiced and deprived of a fair trial

wh.re the court permitted the prosecution to introduce

evidence—absolutely essential to its case—at variance with

the allegations of the indictment and with the bill of par-

ticulars, which evidence also was incompetent and preju-

dicial as proof of a crime prior to the indictment period

and prior to the period as limited by the bill of particulars,

and as to which the statute of limitations had run. This

Court should review the Seventh Circuit’s unprecedented

relaxation of the limiting effect both of a bill of particu-

lars pursuant to F.R.Cr.P. 7(f) and of the statute of limi-

tations, 18 U.S.C. 3282, particularly since the instant deci-

sion conflicts with principles concerning the latter an-

nounced in Toussie v. United States, 397 U.S. 112.

In an unprecedented holding portending great danger

to the possibility of fair trials, the Seventh Circuit has

approved the trial court’s admission into evidence of con-

versations between petitioner and Medow (the ‘‘victim’’

in Count II) going back to 1967 *“—a time which substan-

tially pre-dated the allegations of the indictment," the

18 The government presented substantial evidence concerning pe-

titioner’s alleged extortion of Medow prior to the earliest period al-

leged in the indictment and the bill of particulars, t.e., prior to Janu-

ary, 1969. (Tr. 334-39) This evidence was admitted over defense

objection, and petitioner’s several motions for mistrial based thereon

were denied. (Tr. 336-38) According to the government’s case, pe-

titioner began receiving cases of liquor from Medow in May or June

of 1967. (See. Tr. 332-39)

14Count II alleged that the Hobbs Act violation charged therein

took place “from in or about January, 1969 to and including in or

about July, 1971, the exact dates being unknown to the grand jury.”

(R. 1, p. 3)

government’s answer to defendant’s motion for a bill of

particulars ** and the applicable statute of limitations.’®

(App. A, pp. 6-8)

15 Paragraphs 4, 6 and 11 of the government’s answer to petition-

er’s motion for a bill of particulars specifically limits its proof to the

period charged in the indictment and thereafter. (R. 21-A)

In answer to petitioner's motion for a bill of particulars, the

government stated:

“4. Day or dates, including the tim» of day, the alleged ex-

tortion of Robert J. Medow took place: the exact dates and

times are not known. The alleged extortion of Medow took

place on numerous and various days during the period charged

in the indictment and at various times during the day .. . (Em-

phasis added. )

« * *

6. The Government’s answer as to the dates, including the

time of day, when the defendant allegedly received liquor from

Robert J. Medow is the same as our answer found in paragraph

four above.

* - *

11. The exact time when the defendant obstructed, delayed

or affected commerce as to counts one and two includes the times

of the described threats and wrongful use of the defendant’s

police position, the times at which the money and liquor were

received by the defendant and all periods of time thereafter in

which the financial resources of the victims were depleted as a

result of the alleged extortions.” (R. 21-A)

16 Under 28 U.S.C. 3282, the statute of limitations applicable to

the offense alleged is five years. (See p. 5, supra.) The indictment

in the case at bar was returned on Dec. 13, 1973. (R. 1) The in-

dictment alleged that the criminal activity in Count II allegedly

occurred between January 1969 and July 1971. But the evidence

herein complained of related to the period prior to January 1969

which began in May or June of 1967. The statute of limitations,

then, would bar conviction for any offense committed prior to Dec.

13, 1968. Yet the court permitted the prosecution to introduce such

evidence relative to alleged criminal conduct by petitioner approxi-

mately 18 or 19 months prior to the earliest possible time for which

(footnote continued)

The government’s proof should have been limited upon

Count ITI to alleged extortion from January, 1969 to July,

1971, and to effect on commerce during that period and

thereafter. Neither the indictment nor the bill of particu-

lars covered any allegations as to any period of time prior

to January, 1969.

Since the prior acts thus took place long before the

applicable statutory limitation period, no arguable excep-

tion to the general rule forbieding admission of ‘‘prior

crimes’’ evidence*’ can possibly permit its admission,

(footnote continued)

petitioner could lawfully have been prosecuted. Such holding con-

flicts with this Court’s view, as expressed in Toussie v. United

States, 397 U.S. 112, 114-15 (1970), that statutes of limitation are

to be liberally interpreted in favor of repose, and that such limitation

“is designed to protect individuals from having to defend themselves

against charges when the basic facts may have become obscured by

the passage of time and to minimize the danger of official punishment

because of acts in the far-distant past.”’

17“As a general rule, evidence of prior criminal acts of an ac-

cused, which are not charged in the indictment or information, is

inadmissible.” United States vy. Fierson, 419 F.2¢ 1020, 1022 (7 Cir.

1969).

The specific exceptions to the general rule of exclusion are:

“Evidence of other crimes is admissible when relevart to (1)

motive, (2) intent, (3) the absence of mistake or accident, (4)

a common scheme or plan embracing the commission of two or

more crimes so related to each other that proof of the one tends

to establish the other, and (5) the identity of the person charged

with the commission of the crime on trial. When the evidence

is relevant and important to one of these five issues, it is gener-

ally conceded that the prejudicial effect may be outweighed by

the probative value.” Drew v. United States, 331 F.2d 85, 90

(D.C. Cir. 1964).

where, as here, the government’s case totally failed with-

out such evidence.'®

Moreover, since the government, by its answer to petition-

er’s motion for a bill of particulars, specifically limited

its proof to the period of time covered by the indictment

(R. 21-A), it was therefore barred from introducing evi-

dence relating to the earlier time period not mentioned

either in the indictment or in the bill of particulars, not-

withstanding any arguable exception to the general exclu-

sion of evidence of prior crimes. United States v. Neff, 212

F.2d 297, 309 (3 Cir. 1954)."®

18 Without the evidence beginning in May or June of 1967, the

government could not even arguably make out a prima facie case

under Count II. Medow’s testimony cannot possibly be construed

to make out a prima facie case of extortion against petitioner absent

the evidence which pre-dates the applicable statute of limitations.

(See Tr. 332-42; see App. C, pp. 13-18)

The Seventh Circuit’s reasoning, allowing admission of the 1967

evidence because of its “probative value,” (App. A, pp. 7-8, recog-

nizes this. Also: “It was at this early date that the conversation

regarding illegal deliveries took place,” App. A, p. 6; see also App.

A, p. 2; and: “Of course, the 1967 original conversation between

Medow and appellant was indispensable to an understanding of the

subsequent actions by the parties.” App. A, p. 7 (Emphasis added)

19 The bill of particulars was furnished in accordance with F.R.

Cr.P. 7(f). This effectively limited the government’s proof to the

extent that evidence of the 1967 and 1968 transactions between

Medow and petitioner should have been barred from admission into

evidence.

“{A] bill of particulars ‘Once obtained * * * concludes the

rights of all parties who are to be affected by it, and he who

has furnished the bill of particulars under it, must be confined

to the particulars he has specified . . .’ Otherwise stated, a

bill of particulars strictly limits the prosecution to proof within

the area of the bill.” United States v. Neff, 212 F.2d 297, 309

(3 Cir. 1954). |

The Seventh Circuit’s attempt to distinguish the instant case from

Neff, App. A, p. 8, fn. 1, is clearly erroneous, since in each case con-

viction depended upon the jury’s hearing the evidence which had

been omitted from the bill of particulars. See note 18, supra.

Petitioner recognizes, of course, that variance between

the proof and the bill of particulars is grounds for reversal

only if he was prejudiced by the variance.” But here, peti-

tioner has obviously been prejudiced, for he was taken by

surprise by the testimony concerning the prior transac-

tions,” and without such evidence, the government had no

case. Indeed, the government referred to the 1967 evi-

dence in closing argument, pointedly emphasizing it to

the jury. (See Point 4, wnfra; Tr. 452, 457, 459, 483-84.)

Moreover, the Seventh Circuit has misconstrued and

unduly limited its own previous holding in United States

v. Fierson, 419 F.2d 1020, 1023 (7 Cir. 1969), improperly

20 United States v. Haskins, 345 F.2d 111, 114 (6 Cir. 1965).

21 Moreover, it should be noted that Medow refused to be inter-

viewed by petitioner’s investigators. R. 14; Tr. 31-43. Hence the

testimony concerning the time prior to the allegations of the indict-

ment and at variance with the bill of particulars was indeed a surprise

to the defense, as it might not have been, had Medow permitted

himself to be interviewed. Only presuming petitioner guilty justifies

any inference that he should have known of the 1967 evidence.

Admitting this evidence, further, permitted petitioner to be con-

victed on the basis of conduct not alleged in the indictment, in vio-

lation of his Sixth Amendment right to indictment. Stirone v. United

States, 361 U.S. 212 (1960).

*2'Where a defendant pleads not guilty, cross-examines prosecu-

tion witnesses, and requests instructions on intent, as in the case at

bar, the Seventh Circuit has specifically held that such does not justi-

iy the prosecution’s introduction of evidence of a prior criminal of-

fense:

“[A] plea of not guilty cannot, by itself, be construed as

raising such a keen dispute on the issue of willfulness and intent

so as to justify admission of this type of evidence... .

“{I]t is reversible error in a jury trial . . . to allow the gov-

ernment, during its case in chief, to introduce evidence of a

prior criminal act of the accused in order to show willfulness

(footnote continued)

concluding that it is inapplicable to the case at bar. (App.

A, p. 7) Since here, as in Fierson, petitioner did not testi-

fy or otherwise present positive evidence, the court’s pur-

ported distinction is both illogical and ill-founded.

Since the government was permitted to introduce cru-

cial, substantial evidence of prior criminal conduct, which

was neither alleged in the indictment nor mentioned in the

bill of particulars, and which pre-dated the earliest pos-

sible date prosecutable under this indictment in accordance

with the applicable statute of limitations, petitioner’s con-

viction should not be permitted to stand.

Certiorari should be allowed to review the Seventh Cir-

cuit’s unprecedented relaxation of the limiting effect both

of a bill of particulars and of the statute of limitations,

particularly since the instant decision conflicts with prin-

ciples concerning the latter announced in Toussie v. United

States, 397 U.S. 112 (1970).

Petitioner was deprived of his right to a fair trial by the

prosecution’s prejudicial closing argument, which:

A. improperly referred to and heavily relied upon the

erroneously admitted evidence at issue in Point 3,

supra; and

B. incredibly stated that defense counsel had argued—

when he had not—that petitioner was guilty of

bribery.

A. Inasmuch as the court had already permitted the

government to adduce evidence that petitioner’s transac-

(footnote continued)

and intent when, as here, the accused does not, except for

[pleading not guilty, cross-examining, and] demanding an in-

struction on the requisite wilfulness and intent, otherwise put

that issue in dispute.” United States v. Fierson, 419 F.2d 1021,

1023 (7 Cir. 1969).

tions with Medow went back to 1967, counsel for the gov-

ernment repeatedly, during closing argument, made point-

ed reference to the pre-indictment alleged criminal activi-

ties and referred to the alleged extortion as having been

going on for six years. (Tr. 452, 457, 459, 483-84) And

since the court already—erroneously—had ruled such evi-

dence admissible, under the court’s instructions and the

government’s argument, the jury was supposed to consider

such evidence. (See Point 3, supra.) This argument, predi-

cated on inadmissible evidence essential to the govern-

ment’s case, was prejudicial.

B. After defense counsel had concluded his closing

argument, the prosecution in final argument inaccurately

stated:

‘*He [Mr. Lynch, defense counsel] has asked you to

believe that Callahan is guilty of a crime he is not

charged with. ... Mr. Lynch has argued the crime

was bribery,’’ (Tr. 481) *

Petitioner’s prompt motion for mistrial based on the

prosecutor’s false statement of defense counsel’s position

was denied. (Tr. 481)

*3 Defense counsel unsuccessfully had requested instructions to

the effect that if the jury found that petitioner merely received a

gift, or even that he committed the state offense of bribery, but that

he did not commit extortion, then he must be acquitted of extortion.

(See Point 5A, pp. 27-30, infra.) Counsel indicated during the con-

ference on instructions that this was petitioner’s theory of the case.

(See, e.g., Tr. 435-42). However, defense counsel chose not to make

any such argument to the jury since he could not convince the judge

to give instructions supportive thereof, and no mention or implica-

tion of bribery was made by defense counsel in his closing argument.

(Tr. 462-80) Hence the prosecutor’s reference to the anticipated

argument which defense counsel in fact had not made prejudicially

brought to the jury’s attention the inexplicable (to the jury, that is)

reference to a totally unrelated and uncharged crime.

This argument was unquestionably prejudicial to peti-

tioner. Not only did it call to the jury’s attention an inex-

plicable reference to a totally different and uncharged

crime; additionally, and most importantly, it conveyed to

the jury the erroneous and extremely harmful notion that

defense counsel believed his client guilty of some crime.

Yet the panel discusses and disposes of petitioner’s con-

tention that the prosecution’s argument, in the context of

the case at bar, operated to deprive him of a fair trial,

merely by stating:

‘*It is contended that the government counsel was

guilty of misconduct in closing arguments .... We

find no error in any of these assignments... .’’ (App.

A, p. 10)

These two aspects of the government’s arguments to the

jury, just before the jury was instructed and sent to de-

liberate, were prejudicial to petitioner and deprived him

of a fair trial. The prosecution called to the jury’s atten-

tion evidence of prior crimes which should not have been

admitted in the first instance, see Point 3, supra, relying

heavily "pon such evidence to support conviction upon

Count II; and erroneously misstated defense counsel’s

argument to the jury in such a manner as to call to the

jury’s attention the possibility that petitioner committed

un additional, uncharged offense, and to imply that counsel

thought his client guilty of a crime. The probable impact

of these remarks, rendering petitioner’s trial patently un-

fair, is determinative. Berger v. United States, 295 US.

78, 88 (1935).

The Seventh Circuit has disposed of this issue in utter

disregard of the mandate of this Court in Kotteakos v.

United States, 328 U.S. 750, 763-65 (1946), to consider the

claimed error in light of the factual framework of the

entire case, and has affirmed without declaring a belief

beyond a reasonable doubt, as required by Chapman v.

California, 386 U.S. 18, 24 (1967), that the error could not

have contributed to the conviction. Within the context of

this case, (see App. C), the argument complained of con-

stituted prejudicial error.

Certiorari should be allowed, both for the reasons ad-

vanced in the preceding Point (pp. 18-23, supra), and so

that this Court may express itself as to the propriety of

government counsel erroneously stating that defense coun-

sel believes his client guilty of a crime.

Petitioner was prejudiced by the court’s improper instruc-

tions to the jury and by its refusal to instruct per defense

requests, in the following respects:

A. Refusal to instruct concerning bribery and mere

receipt of gratuity;

B. Refusal to give accomplice testimony instruction;

C. Instruction regarding testimony of immunized wit-

ness.

Moreover, the court’s erroneous refusal to instruct on peti-

tioner’s theory of the case effectively precluded petitioner

from presenting said theory to the jury, in derogation of

petitioner’s due process rights and of his Sixth Amend-

ment right to present evidence.

In view of the paucity of evidence tending to show ex-

tortion,** the court’s charge to the jury was crucial. The

*4 Petitioner maintains that the evidence was insufficient. See Point

2, supra.

“.—/»

grievous errors in that charge deprived petitioner of his

constitutional right to a fair trial.*

A. Refusal to instruct concerning bribery and mere re-

ceipt of gratuity.

Petitioner requested that the court instruct the jury

pursuant to some or all of his requested instructions FF,

*5 Each of the issues raised in this Point deals with error in the

court's charge to the jury. Accordingly, it is appropriate to reflect

upon the respective roles and duties of the trial and appellate courts

in this regard:

“The role of the trial judge was to see that all competent

evidence that was offered came before the jury, that incompe-

tent evidence was excluded, and that the jurors were fully in-

structed on the applicable law. The role that this as an appel-

late court has is to determine whether the trial judge committed

prejudicial error in his rulings or charge...” Kansas City Star

Co. v. United States, 240 F.2d 643, 660 (8 Cir. 1957).

It is essential for the reviewing court to keep in mind that, even

if the appellate judges believe that the evidence was sufficient to

sustain a conviction, this must not interfere with their determination

concerning the propriety of the charge to the jury; to act otherwise,

as has been noted by this Court, would be tantamount to interposing

the appellate judges’ belief in the defendant's guilt in place of the

jury’s verdict, in derogation of defendant’s constitutional right to

trial by jury:

“In view of \»e Government’s insistence that there is abun-

dant evidence to indicate that . . . [defendant was guilty], it

may not be amiss to remind that the question is not whether

guilt may be spelt out of a record, but whether guilt has been

found by a jury according to the procedure and standards ap-

propriate for criminal trials... .

“. . . All law is technical if viewed solely from concern for

punishing crime without heeding the mode by which it is ac-

complished. . . . From presuming too often all errors to be

(footnote continued)

GG, HH, and JJ (R. 52). While indicating to defense

counsel that ke would permit counse! to argue to the jury

that petitioner’s conduct might amount to bribery and not

to extortion,” the trial judge refused to give the requested

instructions.”* (Tr. 435-39)

(footnote continued)

‘prejudicial,’ the judicial pendulum need not swing to presum-

ing all errors to be ‘harmless’ if only the appellate court is left

without doubt that one who claims its corrective process is,

after all, guilty. In view of the place of importance that trial

by jury has in our Bill of Rights, it is not to be supposed that

Congress intended to substitute the belief of appellate judges in

the guilt of an accused, however justifiably engendered by the

dead record, for ascertainment of guilt by a jury under appro-

priate judicial guidance, however cumbersome that process may

be.” Bollenbach v. United States, 326 U.S. 607, 614 (1946).

These concepts should guide this Court in considering this aspect

of the cause. Apparently they were ignored by the Seventh Circuit.

(App. A, p. 10)

*6 Accordingly, defense counsel chose not to argue this issue to the

jury in absence of supportive instructions from the court. See pp.

36-37, infra; see United States v. Phillips, 217 F.2d 435, 440 (7 Cir.

1955).

*7 This series of refused instructions, all contained in R. 52, is as

follows :

“The mere voluntary payment of money or delivery of property,

unaccompanied by any fear of economic loss, would not consti-

tute extortion. Unless the payments here alleged were made

under some form of compulsion, there is no violation of the law

within the charges set out in the indictment.” Def. Inst. No.

FF; Devitt & Blackmar Inst. No. 62.09.

“A private citizen commits the crime of bribery who, prom-

ises or tenders any property to a public employee with intent

to influence the performance of any act related to the employee's

employment or functi n.

“A public employee commits the crime of bribery by receiv-

ing any property knowing that the property was tendered with

(footnote continued)

While bribery and extortion can no longer be regarded

as necessarily mutually exclusive,” clearly there can be

bribery under State law” (as defined by Def. Inst. GG)

which does not amount to extortion under the Hobbs Act.

Although petitioner denied that his conduct with regard

to Medow might amount even to bribery under State law,

it was reasonably possible that the jury might regard his

dealings with Medow as partaking of some degree of crimi-

nality; thus, petitioner reasonably feared that the jury

might nonetheless convict him because they believed his

conduct amounted to something illegal, even if not to ex-

tortion. Hence petitioner was entitled to instructions ad-

vising the jury that if they found he committed bribery

as defined by State law but that he did not commit extor-

tion, they must acquit him of the offense charged.

(footnote continued)

intent to cause him to influence the performance of any act re-

lated to the employment or function of said public employee.

“A public employee is a person who is authorized to perform

an official function on behalf of, and is paid by a City of the

State.” Def. Inst. No. GG; I.P.I. Crim. Inst. No. 21.07. [1.P.I.

Crim. refers to Illinois Pattern Jury Instructions in Criminal

Cases.] See pp. 6-7, supra.

“Extortion and Bribery are separate and distinct offenses.”

Def. Inst. No. HH.

“Tf, from all the evidence, you believe beyond a reasonable

doubt that the Defendant committed the offense of bribery but

did not commit the offense of extortion, you are to find him

not guilty of extortion.” Def. Inst. JJ.

28 See, ¢.g., United States v. Braasch, 505 F.2d 139, 151 & 151

n.7 (7 Cir. 1974); United States v. Kahn, 472 F.2d 272, 278 (2

Cir. 1973).

29 See State statute set forth at p. 6, supra.

And even if his conduct did not amount either to bribery

or extortion, the jury might still have perceived a taint

of criminality; hence requested instruction FF dealt with

mere receipt of gratuity, unaccompanied by any fear of

economic loss on the part of the giver.

The court’s refusal to pinpoint the distinction between

receipt of a wholly voluntary gift or even bribery on the

one hand, from Hobbs Act extortion on the other, pre-

cluded the jury from finding petitioner not guilty if they

found that his receipt of the liquor from Medow was whol-

ly voluntary and uncoerced on Medow’s part, or even if

they decided that bribery but not extortion was involved.

The series of instructions requested by petitioner (FF,

GG, HH, and JJ) would have protected petitioner from

conviction if the jury found that petitioner’s conduct,

though perhaps amounting to some state criminal offense,

such as bribery, did not amount to extortion under the

Hobbs Act. Refusing these instructions was tantamount to

precluding petitioner from presenting his theory of de-

fense to the jury. See cases and argument, pp. 36-37, infra.

B. Refusal to give accomplice testimony instruction.

The court refused to instruct pursuant to petitioner’s

tendered instructions on accomplice testimony (Def. Inst.

Q & S), ruling that as a matter of law, Medow could not

be regarded as an accomplice in this case.* (Tr. 425-26)

%© The refused instructions regarding Medow, contained in R. 52,

are:

“An accomplice is one who voluntarily participates in the

commission or the planning of a crime.

“If the jury believes that the witness, Robert J. Medow,

directly participated as an accomplice in the commission of the

(footnote continued)

The proffered instructions were intended to be alterna-

tive (t.e., either Q or S, but not both, was to be given, if

either was to be given); Q in the event the court desired to

leave to the jury the question whether or not Medow was an

accomplice, or S in the event that the court determined as

a matter of law that he was.

Evidently the government believed Medow to have been

guilty of some offense—else why the grant of immunity’

(See Tr. 326-27; R. 42-43) That Medow believed himself

culpable is demonstrated by his having consulted an attor.

ney who advised him to request immunity. (Tr. 343-45)"

One is not legally precluded from being technically an

‘*accomplice’’ merely because one is alleged also to be

(footnote continued)

offense charged, his testimony should be closely examined and

weighed with great care.

“If the jury believes the testimony of an accomplice to be

true beyond a reasonable doubt, that testimony is sufficient to

convict the defendant, even though it is not corroborated by

any other evidence.” (Def. Inst. No. Q, LaBuy Inst. No. 6.07)

“An accomplice is one who voluntarily participates in the

commission or the planning of a crime.

“The witness, Robert J. Medow, is an accomplice of the

accused in this case. As an accomplice his testimony must be

closely examined and weighed with great care.

“If the jury believes the testimony of an accomplice to be true

beyond a reasonable doubt, that testimony is sufficient to con-

vict the defendant, even though it is not corroborated by any

other evidence.” (Def. Inst. No. S, LaBuy Inst. No. 6.07)

[“LaBuy Inst.” refers to instructions contained in LaBuy,

Manual on Jury Instructions in Federal Criminal Cases (1965).]

31 Moreover, the record reflects that Medow never initiated any

complaint concerning petitioner, but gave information only when

FBI agents contacted him after being directed to him by an “anony-

mous informant.” (Tr. 192-93)

the victim of the same crime; viz., the status of a woman

alleged to have been illegally aborted, or to have been

illegally transported in interstate commerce for purposes

of prostitution; or, indeed, the status of the giver of a

bribe.*

Under the factual circumstances of the case at bar, re-

fusal to give either No. Q or no. 8 precluded petitioner

from receiving that protection to which he was entitled,

afforded by law to one against whom an accomplice gives

testimony. See, e.g., Phelps v. United States, 252 F.2d 49,

52 (5 Cir. 1958); Dunn v. United States, 318 F.2d 89, 93

(5 Cir. 1963); Hull v. United States, 324 F.2d 817, 823

(5 Cir. 1963) (general credibility and reasonable doubt

instructions did not take place of requisite accomplice

testimony instruction); see Cash v. Culver, 358 U.S. 633,

637 (1959).

At the very least, the jury should have been given the

opportunity to make an independent factual determina-

tion, based on an appropriate instruction such as No. Q,

whether or not Medow was to be regarded as an accom-

plice for purposes of the manner in which his testimony

was to be evaluated by the jury.

C. Instruction regarding testimony of immunized witness.

Over defense objection (Tr. 412-16), the court instructed

the jury concerning immunized witnesses and the manner

in which their testimony was to be regarded.** (Tr. 509-10)

32 Cf. pp. 27-30, supra, especially Def. Inst. No. GG, at pp. 28-29,

supra, fn. 27, taken from I.P.I. Crim. No. 21.07, setting forth

Illinois law. See pp. 6-7, supra.

33 The instructions given concerning immunized witnesses are as

follows:

(footnote continued)

Taken in the context of the entire case—including the

jury’s prior awareness that Medow had received a grant

of immunity via direct examination by the government

over defense objection (Tr. 376)—the only possible effect

of these instructions was to improperly cause the jury to

give unwarranted extra credence to Medow’s testimony.

For while the court stressed that the immunized witnesses

—including Medow (Tr. 326-27; R. 42-43)—were open to

perjury prosecution if they gave false material evidence,

thus leading the jury by natural inference to believe that

(footnote continued)

“One final word about the immunity question which you have

heard a good bit about.

“Two of the witnesses who testified, of course, were granted

a grant of immunity pursuant to a court order after a petition

by the government requesting such an order.

“Under the law, this means that none of the testimony that

they gave during the trial, nor any information, directly or in-

directly derived from their testimony, can ever be used against

them in any subsequent proceedings; however, if any of them

testified untruthfully, they still could be prosecuted for perjury

for making a false material statement, even though he had a

grant of immunity with respect to the testimony he was giving.

“The matters concerning testimony given under grant of

immunity, should be considered by you in weighing the credi-

bility of the testimony of the witnesses involved, and the testi-

mony of a person granted immunity should be examined and

weighed by you with greater care than the testimony of an ordi-

nary witness.

“It is, of course, obvious, I think, that the fact that these two

witnesses were granted immunity is not in and of itself, evidence

with respect to Mr. Callahan’s guilt or innocence, but the fact

that the witnesses testified under grant of immunity, however,

doesn’t mean that that is a justification for finding Mr. Calla-

han not guilty if you find, in fact, from all the evidence includ-

ing their testimony, that his guilt has been proven beyond a

reasonable doubt.” (Tr. 509-10)

such witness would be /ess likely to lie under oath than an

‘‘ordinary,’’ non-immunized witness, the jury was at no

point during the charge informed that such sanction in

fact was open and available against any witness, immunized

or not, who might give false material testimony. See

United States v. Reid, 410 F.2d 1223, 1227-28 (7 Cir.

1969).

Moreover, the entire thrust of the immunized witness

instructions was in favor of the jury’s believing such wit-

nesses. (See instructions set forth in footnote 33, pp. 32-33,

supra; Tr. 509-10). Indeed, the court’s instruction that

‘the testimony of a person granted immunity should be

examined and weighed by you with greater care than the

testimony of an ordinary witness,’’ (Tr. 510), while in-

tended as a protection for petitioner, might well have cut

the other way to his detriment; for it could reasonably be

interpreted, in context and without further clarification, to

mean that such testimony should be given more weight than

the testimony of an ordinary witness.*

34 One further issue relative to immunity, involving considera-

tions of judicial and public policy, should be noted.

The Seventh Circuit has held that a defendant lacks standing to

raise questions concerning the validity of the scope of a grant of

immunity to a witness, United States v. Braasch, 505 F.2d 139, 146

(7 Cir. 1974), and, pursuant to Braasch’s holding regarding 18

U.S.C. 6003(b)(2), (id. at 146), the government’s petition in the

case at bar requesting that Medow be granted immunity, (R. 42),

was technically sufficient, in that the government set forth therein

that Medow had informed the government that he intended to assert

his Fifth Amendment privilege. (R. 42, par. 2) However, the trial

court herein made no independent determination whether or not

Medow in fact was subject to prosecution for any offense (Tr.

10-15); this aspect of immunity was not dealt with in Braasch.

If a witness under subpoena took the stand without grant of im-

munity and claimed his privilege against self-incrimination, the court

(footnote continued)

ee ee

In the factual context of this case, (see App. C; see

Point 2, supra), the various errors herein complained of

regarding the giving and refusing of jury instructions de-

prived petitioner of a fair trial.

(footnote continued)

would, of necessity, determine whether such claim was valid; if it

were not, the witness could be compelled to testify under pain of

contempt.

To permit the mere granting of a government petition to im-

munize a witness—based only upon the government’s statement that

he has indicated he will claim the privilege when in fact no valid

basis for claim of privilege may exist—-to justify the giving of such

instructions concerning testimony of immunized witnesses as were

given herein, is to open the door to abuse of the immunity statute

by wholesale grants of unwarranted immunity in order to enhance

the credibility of witnesses by virtue of their having been immunized.

(It should be pointed out that the trial court noted, ex post facto,

during the conference on instructions, that there did not appear to

have been any legal justification to support the grants of immunity

to Sannasardo and Medow in this case, in that there was no valid

claim of privilege as to any prosecutable offense regarding either

immunized witness. (Tr. 413-16))

If no independent determination of the validity of the prospective

witness’ anticipated claim of privilege is to be required, then at the

very least, to mitigate against the kind of prejudice asserted in the

case at bar by reason of the immunized witness instructions, a con-

comitant instruction must also be given to the effect that even an

“ordinary” witness is equally subject to prosecution for perjury

committed on the stand. Anything less than this results in prej-

udice, as is claimed herein, by the court’s singling out of immunized

witnesses as being possibly subject to prosecution for perjury. Cf.

United States v. Reid, 410 F.2d 1223, 1227-28 (7 Cir. 1969).

With regard to the actual danger—or lack thereof—of any such

prosecutions, see colloquy during conference on instructions, Tr.

417-18.

The court’s erroneous refusal to instruct on petitioner’s

theory of the case effectively precluded petitioner from

presenting said theory to the jury, in derogation of peti-

tioner’s due process rights and of his Sixth Amendment

right to present evidence.

As noted above, pp. 27-30, supra, petitioner requested cer

tain instructions regarding his activities amounting to

nothing more than receipt of a freely given gratuity, or,

at most, to bribery, rather than extortion. While stating

he would permit counsel to make such argument, the court

refused so to instruct the jury. (Tr. 435-42)

Because no instructions covering this aspect of the case

were given by the court, petitioner’s trial counsel chose

not to make such argument to the jury. (Tr. 462-80)

The court erred in refusing these instructions, as was

pointed out above, pp. 27-30, supra. Where a defen-

dant presents a theory supported by any evidence, he has

a right to have the jury instructed upon that theory.

United States v. Grimes, 413 F.2d 1376 (7 Cir. 1969); Le-

vine v. United States, 261 F.2d 747 (D.C. Cir. 1958) ; United

States v. Phiwtips, 217 F.2d 435 (7 Cir. 1955). Here, there

was ample evidence to support the theory that petitioner’s

transactions with Medow as alleged in Count II amounted

to nothing more than receipt of a gift, or, at most, to brib-

ery under State law rather than to extortion under the

Hobbs <Act.*

Defense counsel’s being able to argue a defendant’s

theory of the case to the jury does not cure the error in

refusing to instruct thereon:

35 See Point 2, pp. 14-17, supra; Point 5A, pp. 27-30, & fn. 27,

supra.

‘‘An argument to a jury, however, on a legal issue,

unsupported by instruction to which the defendant

was entitled, constitutes an aggravation rather than

a mitigation of the harmful effect of the court’s refusal

to instruct.’’ United States v. Phillips, supra, 217

F.2d at 440.

Moreover, since petitioner has a due process right to

present his theory of the case to the jury, the court’s re-

fusal to instruct the jury pursuant thereto, which impelled

counsel not to make the argument unsupported by instruc

tions, amounted to deprivation of due process of law and

of petitioner’s Sixth Amendment right to present evidence.

See Holt v. Virginia, 381 U.S. 131, 136 (1965); cf. Wash-

ington v. Texas, 388 U.S. 14 (1967).

The questions raised herein dealing with the court’s

errors concerning instructions—including the argument

that improper grants of unwarranted immunity prejudice

a defendant by unduly bolstering the immunized witness’

testimony before the jury—should be considered by this

Court, since such errors deprived petitioner of a fair trial,

and because these questions should be, but apparently have

not been, resolved by this Court.

Moreover, certiorari should be allowed so that this Court

may speak to a defendant’s due process right to have the

jury instructed pursuant to his theory of the case, and to

determine whether Fifth Amendment due process and the

Sixth Amendment right to present evidence necessarily

include the right to have the jury so instructed.

The trial court committed prejudicial error by instructing

the jury, in advance of any specific request by the jury,

that the court would not consider any jury request during

deliberations for portions of the evidence presented at

trial. Such instruction constituted an impermissible ab-

dication of judicial responsibility to exercise judicial dis-

cretion upon any such request if and when it may have

arisen, effectively precluding the jury in advance from

making any such request. Certiorari should be allowed so

that this Court, in the exercise of its supervisory powers,

may prevent trial courts from following this impermissible

procedure.

The trial court instructed the jury, in advance of any

specific request and as part of its general charge just be-

fore the jury retired to deliberate, that the court would

not consider any jury request during deliberations for por-

tions of the evidence presented at trial.*®

86 The court instructed the jury as follows:

“T will tell you now, don’t waste your time asking me questions

about what the evidence was on a particular subject. We don’t

respond to questions of that sort. It is the recollection of the

12 of you who will deliberate the verdict in this case, that is

going to govern that.

We don’t have a written transcript typed up.” We have steno-

type notes. We do not have an available transcript, but if we

did, we wouldn’t give it to you on a single subject because it

would highlight that evidence out of proportion with the other

evidence. So, there isn’t any point in your sending me an in-

quiry as to what the evidence was on a particular subject.

On the other hand, if you have some questions as to what

the law is, if you have some doubts, notwithstanding my very

clear instructions, if you have some doubts as to what the law

(footnote continued)

ene oe =

Thus, the court precluded the jury in advance from mak-

ing any legitimate inquiry it may later have had concern-

ing the evidence in the case, although judicial action on

such requests clearly is discretionary with the court. Per-

mitting a jury to ask such questions and allowing the jury

to have portions of evidence read to them certainly may be

proper.”

Moreover, a court’s refusal to grant such a jury request

can result in such fundamental unfairness to defendant

that reversal is necessitated. United States v. Jackson, 257

F.2d 41, 42-43 (3 Cir. 1958). In Jackson, the reviewing

court held that defendant was entitled, as a matter of

right, to have the jury informed as to pertinent parts of

the evidence in accordance with their query, and reversed

where the trial court had refused their request.

Where, as here, the jury was precluded in advance by the

court’s charge from making any specific inquiry, it is

impossible to ascertain what, if any, specific request may

have been made, had the erroneous charge not been given;

nor can it be determined whether the jury may have had

some request concerning the evidence, the refusal of which

(footnote continued)

is, I may find it appropriate to clarify that doubt since it is my

responsibility.

What the facts are, is your responsibility, and don’t ask me

any questions about what the evidence on any particular sub-

ject was, or how a witness testified.” (Tr. 517) (Emphasis

added. )

37 United States v. Hurst, 436 F.2d 1092 (5 Cir. 1971); United

States v. Dellinger, 472 F.2d 340, 380 (7 Cir. 1972); Sears v.

United States, 343 F.2d 139, 144 (5 Cir. 1965); Easley v. United

States, 261 F.2d 276, 277 (5 Cir. 1958).

would have amounted to reversible error, as in Jackson,

swpra.

In effect, the court told the jury he had no discretion to

grant any request for evidence: ‘‘We don’t respond to

questions of that sort.’’ (Tr. 517) Such refusal to exercise

discretion in this regard has been held reversible error in

two recent Illinois Supreme Court cases,** which, although

not controlling herein, are persuasive, particularly in light

of federal case law from other areas of law concerning

failure to exercise discretion in discretionary matters.”

88In People v. Queen, 56 I1l.2d 560, 310 N.E.2d 166 (1974), in

reply to a jury request to have defendant’s testimony read to them

during deliberations, the trial court advised the jury that it must

decide on the basis of testimony already heard, and told them, “I

cannot have any testimony of any witnesses read to you.” The IIli-

nois Supreme Court reversed and remanded, holding that action on

such requests is discretionary, and: “There is error when a trial

court refuses to exercise discretion in the erroneous belief that it

has no discretion as to the question presented.” 310 N.E.2d at 169.

And in People v. Autman, 58 I11.2d. 171, 317 N.E.2d 570 (1974),

the same court reversed and remanded in two cases because of

the trial court’s blanket refusal to consider jury requests to have

testimony reviewed. Jd. at 572-73. Since the request in Autman’s

case related to significant testimony, the court held prejudicial error

occurred; moreover, in Pulley’s case, wherein the jury did not

specify which testimony it wished to hear again, “since the request

may have related to critical testimony . . . defendant was entitled

to have the request considered by the trial court.” /d. at 573. (Em-

phasis added. )

39 Failure to exercise discretion upon requests for disclosure of

pre-sentence investigation reports (pursuant to F.R.Cr.P. (32(c)(2))

has been held to amount to an abuse of discretion. United States v.

Brown, 470 F.2d 285, 287-89 (2 Cir. 1972) ; United States v. Bryant,

442 F.2d 775. 778 (D.C. Cir. 1971). In both Brown and Bryant,

the trial court’s refusal to disclose such information based upon a

(footnote continued)

In the case at bar, the trial court improperly refused to

exercise his discretion by precluding the jury from asking

for any evidence during deliberations; this amounted to

an abdication of judicial responsibility and was such an

abuse of discretion that a new trial should be ordered.

Yet the Seventh Circuit, with characteristic aplomb, has

disposed of this substantial contertion merely by stating:

‘It is also said that the judge erred in his final in-

struction to the jury which admonished the jurors not

to make inquiries as to the specific testimony which

had been given. We find no error in any of these as-

signments nor do we perceive error in any of the

court’s instructions... .’’ (App. A, pp. 9-10)

To prevent district judges from having carte blanche to

abdicate their responsibility to exercise discretion by in-

structing as in the case at bar, this Court should, for the

first time, rule upon the propriety of such an instruction.

In the exercise of its supervisory power, this Court should

grant certiorari to review the impermissible procedure

allowed by the Seventh Circuit.

(footnote continued)

blanket policy of non-disclosure rather than upon the exercise of

discretion on a case-by-case basis necessitated reversal. See also

United States v. Powell, 487 F.2d 325, 329 (4 Cir. 1973) (dictum).

Similarly, where in making the sentencing decision the trial judge

refuses to exercise discretion which he clearly possesses, Courts of

Appeals have set aside sentences, holding such refusal to exercise dis-

cretion equivalent to an abuse of discretion. See, e.g., United States v.

Wiley, 267 F.2d 453 (7 Cir. 1959); United States v. Daniels, 446

F.2d 967 (6 Cir. 1971); United States v. Hartford, 489 F.2d 652

(5 Cit. 1974); Briscoe v. United States, 391 F.2d 984 (D.C. Cir.

1968) ; Woosley v. United States, 478 F.2d 139 (8 Cir. 1973).

CONCLUSION

For any or all of the foregoing reasons, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

Junius Lucius EcHELEs

CAROLYN JAFFE

Attorneys for Petitioner

APPENDIX

APPENDIX A

In The

UNITED STATES COURT OF APPEALS

For The Seventh Cireuit

No. 74-1618

United States of America,

Plaintiff-Appellee,

Jerome V. Callahan,

Defendant-Appellant.

ORDER

[Dated May 5, 1975, entered by Chief Judge Fairchild,

Circuit Judge Cummings, and Circuit Judge Doyle of

the 10th Circuit.* ]

This is an appeal of a criminal conviction. The indict-

ment contains two counts under 18 U.S.C. § 1951, the Hobbs

Act. Each count describes a distinct extortion transaction.

The jury returned a verdict of not guilty on Count 1 and

of guilty on Count 2.

The first count alleged that the appellant, a Captain for

the Chicago Police Department, obtained the sum of $750

from a Mr. Sannasardo, a tavern owner. The incident

which gave rise to this was a fight which occurred on Jan-

uary 19, 1969. A customer who was hurt called the police.

The investigating officer went to the tavern. He intimated

* Sitting by designation.

App. 2

to Sannasardo that he was in danger of losing his liquor

license. Thereupon, Sannasardo offered to pay the officer

$100, but the latter said that that would be insufficient and

that Sannasardo would have to come to the station. He did

so and met appellant police captain who demanded $1200.

Negotiations followed and an agreement was made to pay

$750 to appellant.

The second count was not dissimilar from the first in

that it involved the use of official authority by the appel-

Jant against one Medow who operated a liquor store in the

appellant’s district. It started when the appellant told the

owner, Mr. Medow, that he had seen his trucks making

illegal deliveries. Appellant told Medow that he had had

a similar problem before and had made an arrangement

with the owner. He also told Medow that he could use a

case of whiskey. Medow gave the case of whiskey to the

appellant. Thereafter, appellant came to Medow’s store

with some regularity. Every five or six weeks he obtained

free a case of VO Whiskey worth approximately $60.

Medow’s testimony was that he felt threatened, that he

knew appellant was the Captain of the Police in his dis-

trict and he considered that it was better to have him as

a friend than as an enemy.

On this appeal it is contended that as a result of dissimi-

larity between the transactions, joinder of the two counts

was improper or, in the alternative, that a severance should

have been granted due to the prejudice arising from the

joinder. The many other points raised by appellant are

alleged trial errors:

Alleged improper admission of evidence which occurred

prior to January 1969; failure of the court to question

the jurors as to newspaper accounts of the trial; insuffi-

ciency of the evidence to establish the essential element of

en se nine re en ea

App. 3

extortion. On this it is maintained that the evidence mere-

ly supports the conclusion that these were gifts; failure of

the court to instruct the jury on the contrasting definition

of bribery; alleged error in the court’s instruction to the

jury that the court would not, during their deliberations,

entertain requests as to the evidence.

The above are some but not all of the points which are

advanced. There are other arguments set forth in the

brief, Based on a consideration of the entire record to-

gether with all of the points argued, we conclude that the

judgment must be affirmed.

JOINDER AND SEVERANCE

The argument here, as we have indicated, is that it was

prejudicial error to join the two counts which have been

described briefly above. The standards for joinder are

set forth in Rule 8(a) which provides in pertinent part:

Two or more offenses may be charged in the same in-

dictment . . . if the offenses charged ... are of the

same or similar character or are based on the same

act or transaction or on two or more acts or transac-

tions connected together or constituting parts of a

common scheme or plan.

Are the offenses here the same or of similar character?

The contention is that there is a dissimilarity because 1)

there are different victims; 2) different considerations

passed, money in the one case and whiskey in the other;

3) the money transaction in Count 1 described a single

incident, whereas Count 2 pertains to continuing viola-

tions and continuing payment of whiskey; 4) the allega-

tion in Count 1 is that there was extortion by causing fear

of economic harm and under color of official right, whereas

Count 2 merely alleges color of official right.

App. 4

There is similarity in that each count alleges use of

official position to obtain property from another. True,

the victims were different and the property obtained was

different. We hold, however, that the differences are less

important than the similarity. In both instances official

position was used to wrongfully obtain the property of

another.

The general character of each case was the same. The

factor of different victims assumes little importance. Thus

in Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964),

joinder of a count charging robbery of one store with a

count charging attempted robbery of another store was

upheld. See United States v. Franklin, 452 F.2d 926 (8th

Cir. 1971) involving interstate transportation of forged

checks. In Franklin count 1 was a transaction which was

remote from and unrelated to counts 2 and 3. See also

Baker v. United States, 401 F.2d 958 (D.C. Cir. 1968),

cert. denied, 400 U.S. 965 (1970). Here there were two

counts of income tax evasion for the years 1962 and 1963.

In the case at bar neither remoteness in time nor the fact

that one transaction was continuing rendered the counts

improperly joined.

United States v. Quinn, 365 F.2d 256 (7th Cir. 1966) is

not controlling. There the court said that even if joinder

was proper, severance should have been granted in view

of the complexity of the transactions.

We recognize that under Rule 14, Fed. Rules Crim. Proce.

severance is proper if the joinder is prejudicial.

In our judgment the order here which denied severance

was a correct exercise of discretion. United States v. Bar-

rett, 505 F.2d 1091 (7th Cir. 1974) ; United States v. Hutul,

416 F.2d 607 (7th Cir. 1969), cert. denied, 396 U.S. 1012

(1970).

howwens —.

erent recites) bt a wnt ani einen ner ie aoe te aa apr ata ty AMBRE tens ke

App. 5

The general rule is that if evidence on one count would

be admissible with respect to the other as a similar of-

fense, the denial of severance is proper. See Drew v.

United States, 331 F.2d 85 (D.C. Cir. 1964). See also

United States v. Williamson, 482 F.2d 508 (5th Cir. 1973) ;

Robinson v. United States, 459 F.2d 847 (D.C. Cir. 1972);

Bradley v. United States, 433 F.2d 1113 (D.C. Cir. 1969).

Here, evidence as to each crime is relevant with respect

to intent or motive.

We conclude that the two counts in this case were simple

and not likely to confuse the jury. The incidents were dis-

tinct and the instruction to the jury to consider the evi-

dence in support of each count on a separate basis served

to avoid possible confusion.

Appellant finally argues that he was prejudiced because

he was deprived of the right to take the stand and testify

on one count. It is true that joinder may possibly produce

prejudice where the defendant wishes to take the witness

stand and testify on less than all of the counts. Cross v.

United States, 335 F.2d 987 (D.C. Cir. 1964). But the mere

assertion that he may wish to testify in this manner is not

sufficient. He must make some showing of prejudice. See

United States v. Williamson, 482 F.2d 508 (5th Cir. 1973).

We find no prejudice in any onerous or invalid sense.

Il.

IMPROPER COMMENTS DURING VOIR DIRE

During the voir dire the trial court, in explaining the

government’s burden of proof and the appellant’s right to

remain silent, first asked the jury if any of them had feel-

ings for or against policemen. The court then, by way of

ilustration, stated that the jurors should start out with

no advance feelings and without being programmed. Thus

App. 6

the court used the computer metaphor. Also, the court

asked the jurors to consider that they were sitting at either

the government’s side of the table or the appellant’s and

to ask themselves whether if it were their case they would

be willing to trust the decision to 12 persons with the same

attitude which they had.

We are unable to see any error in the use of illustrations

of this kind by the court, nor do we perceive error in the

court’s statement that the evidence of the defense follows

that of the government as being an implication that the

defense will present a case. The jury was also instructed

that the appellant had no obligation to present a case and

that he had an absolute right to refuse to testify. In this

instance he exercised this right.

ITT.

EVIDENCE OF OTHER OFFENSES

Count 2 of the indictment charged a continuing offense

of extortion of Mcdow from January 1969 to July 1971.

Medow was allowed to testify, however, that the practice

of giving liquor to appellant commenced in May or June

1967. It was at this early date that the conversation re-

garding illegal deliveries took place. The giving of liquor

during the years of January 1969 to July 1971 was a con-

tinuation of the original transaction. The question posed

is whether the action of the court in receiving all of this

testimony involving as it does prior criminal activity not

charged in the indictment was error.

Appellant makes two points: first, he argues that the

evidence does not support the common scheme or plan ex-

ception to the rule excluding this kind of evidence. He also

argues that since much of this evidence was beyond the

statute of limitations, that fact should also bar it.

eeatdiitsscinniseie nat

Ne eee oT eee

App. 7

The second main contention is that the evidence is pro-

hibited by the rule of United States v. Fierson, 419 F.2d

1020 (7th Cir. 1969), wherein the court said that evidence

of prior criminal acts is inadmissible to show intent or

knowledge if intent or knowledge is not an issue in the

case. First, the Fierson rule is not applicable because at

bar the intent element was more than a formal issue. True,

the appellant did not present positive evidence, but evi-

dence was brought out on cross-examinatiou of the gov-

ernment’s witnesses and the general object of thi= was to

demonstrate that appellant did not have a corrupt intent.

We are mindful also that the intent of the victim Medow

was in issue and there were efforts on the part of appellant

to establish that Medow’s motives were purely charitable.

Of course, the 1967 original conversation between Medow

and appellant was indispensable to an understanding of

the subsequent actions by the parties.

We disagree with the appellant’s other contention that

the evidence was inadmissible to show a plan or scheme.

See United States v. Jones, 438 F.2d 461 (7th Cir. 1971);

United States v. Turner, 423 F.2d 481 (7th Cir.), cert. de-

nied, 398 U.S. 967 (1970). In Jones this court said:

Evidence of other criminal activities is admissible

if it is relevant, unless minor probative value is out-

weighed by major prejudicial effect. And the balanc-

ing of probative value against prejudice is, in the first

instance, left to the sound discretion of the trial judge.

438 F.2d at 465.

The evidence of the 1967 conversation and the pattern of .

gifts was probative. Indeed, the value derived far out-

weighed any prejudicial effect. See United States v.

Braasch, 505 F.2d 139 (7th Cir. 1974).

App. 8

Finally, the frct that some of the acts occurred prior

to the period f limitations is not a bar. The important

consideration is that it was not so remote as to be without

probative value. The transaction was continuing and the

incidents of it were admissible. See United States v. Gen-

eral Motors Corp., 121 F.2d 376, 408 (7th Cir.), cert. de-

nied, 314 U.S. 618 (1941).’

IV.

PUBLICITY DURING TRIAL

The jury was selected on June 17, 1974 and the case was

submitted on June 20, 1974. During this period there were

four newspaper articles, two on June 19 and two on June

20. Since the jury was not sequestered, it had access to

these articles. Appellant’s counsel called the court’s atten-

1 Appellant also contends the evidence was inadmissible because

it was not disclosed in the bill of particulars. Appellant relies on

United States v. Neff, 212 F.2d 297 (3d Cir. 1954). Neff was

charged with perjury in denying to the grand jury that she had col-

lected dues for the Communist Party. In the bill of particulars the

government listed the times of the payments of dues as August,

September, October of 1946 and January 1948. The dues were col-

lected from Woolley and Verderosa. At trial the government called

an additional witness, not disclosed until trial, who testified as to

payment of dues by two other people in 1945. The court held this

proof was inadmissible as outside the bill of particulars and that the

new evidence had surprised defendant and substantially increased

the burden of her defense. In Neff, the prosecution had been al-

lowed to produce new evidence from which the jury might convict

even if it disbelieved the evidence with respect to the other alleged

payments of dues. Here, Callahan was adequately apprised of the

offense with which he was charged. A bill of particulars is not to

be used as a discovery device. Appellant knew Medow would testify

and it was not necessary that the bill of particulars recite what his

testimony would be in every detail.

App. 9

tion to the four articles and requested that the jurors be

examined with respect to them. However, the trial court

determined after an examination of the articles that there

was no prejudicial material in them and on that ground

refused to question the jury. The trial court did, however,

instruct the jurors repeatedly that they were not to read

or listen to any publicity about the case and that it was to

consider only evidence introduced in court.

In Margoles v. United States, 407 F.2d 727 (7th Cir.),

cert. denied, 396 U.S. 833 (1969), there had been extensive

publicity. Two articles in particular created problems.

The one contained the names and addresses of the jurors

resulting in anonymous mail being sent to them. The sec-

ond published testimony given outside the presence of the

jury, which evidence was ruled out. The four articles in

the case at bar were mere factual reports which were short

and had non-prejudicial headlines. Although they con-

tained minor inaccuracies, they did not bring out evidence

which had been ruled inadmissible. Since, therefore, there

is a sound basis for the trial court to rule that the articles

were not prejudicial, the court was not called on to ques-

tion the jurors as to whether they had read or heard about

the same.

ALLEGED INSUFFICIENCY OF THE EVIDENCE

The argument is that the evidence considered in its best

light lacks corrupt character; that it merely shows gratu-

itous gifts evidenced by the friendly relationship between

appellant and Medow. We disagree, however, that this

friendliness rules out extortion. See United States v.

Crowley, 504 F.2d 992 (7th Cir. 1974); United States v.

Demet, 486 F.2d 816 (7th Cir. 1973), cert. denied, 416 U.S.

App. 10

969 (1974). The surrounding circumstances were such that

the jury could infer the existence of an underlying threat

from appellant to Medow, and Medow testified that he was

aware of this.

V1.

Further assertions are advanced by appellant. It is

contended that the government counsel was guilty of mis-

conduct in closing arguments and that the appellant’s

counsel was invalidly restricted in his closing argument.

It is also said that the judge erred in his final instruction

to the jury which admonished the jurors not to make in-

quiries as to the specific testimony which had been given.

We find no error in any of these assignments nor do we

perceive error in any of the court’s instructions or in the

rulings of the court with respect to tendered instructions.

We have not failed to consider the argument concerning

the denial of appellant’s motion for continuance and the

assertions regarding the refusal to dismiss the indictment

and the allegations with respect to refusal of the court

to suppress Medow’s testimony. Moreover, we see no

error in the action of the court in excusing jurors. Each

and every other argument of appellant has been considered

and has been determined to be without merit. The cause

was carefully and ably tried.

The judgment of the district court is affirmed.

nail

App. 11

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Dlinois 60604

August 7, 1975.

Before

Hon. Thomas E. Fairchild, Chief Judge

Hon. Walter J. Cummings, Circuit Judge

Hon. William E. Doyle, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 74-1618 vs.

JEROME CALLAHAN,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Dlinois, Eastern Division.

(73 CR 890)

On consideration of the petition for rehearing and sug-

gestion that it be reheard en banc filed in the above-entitled

cause by counsel for the defendant-appellant, no judge in

active service having voted to grant the suggestion, and

all of members of the panel having voted to deny a re-

hearing.

It Is Ordered that the petition for a rehearing in the

above-entitled cause be and the same is hereby Denied.

App. 12

APPENDIX C

Summary of Facts

There was a great deal of conflict amongst the three

government witnesses—Joseph Sannasardo, proprietor of

a tavern (Tr. 106-84) ; Peter Sannasardo, father of Joseph

(Tr. 196-206) ; and John Landa, patron of the tavern (Tr.

207-22)—concerning Count I.* A summary of all of their

testimony follows:

While Joseph Sannasardo was at his parents’ apart-

ment, upstairs of his tavern, a fight broke out among some

of the patrons. John Landa was injured in the fight and

the police were summoned. An officer who identified him.

self to Joseph Sannasardo as Officer Hippert (and who did

not testify) advised him they would have to ‘‘pull his

license’ because of the fight on the premises; Joseph

offered him $100 to avoid such action. Hippert told him

it would cost a lot more than that; that he would have

to see someone at headquarters. At the station Hippert in-

troduced him to a Captain (whom Joseph Sannasardo iden-

tified as petitioner) who advised Sannasardo it would cost

$1200 to straighten it out; they negotiated as to price,

finally settling on $750. Sannasardo had $250 with him

which he gave to the Captain, and brought in the balance

of $500 the following day. Landa was taken to a hospital

by police vehicle the night of the fight, which, according

* Although petitioner was acquitted upon Count I, the facts per-

taining to that Count are briefly set forth herein, inasmuch as the

evidence adduced thereon is now pertinent as bearing on petitioner’s

argument herein that the trial court’s refusal to sever the counts for

trial resulted in prejudice to him as to Count II, upon which he was

convicted. (See Argument, Point 1, pp. 9-14, supra.)

ten ve

App. 13

to hospital records (Tr. 222-30) was January 19, 1969. No

police reports were written up concerning the incident at

the tavern, absence of which reports was contrary to

standard operating procedure of the police department,

according to several witnesses to that effect. An Officer

Hippert was on duty the night of the incident in the area

where the tavern was located. Petitioner was the Watch

Commander on duty on January 19 and 20, 1971, in Dis-

trict 19.

John Fahey, called by the government to identify cer-

tain police records and petitioner’s signature, and to

testify concerning the duties of a watch commander and

various police department procedures, testified that he

was District Commander of the 19th District from 1962

to May 4, 1970; during the entire period of time that peti-

tioner was a Captain and Watch Commander, Fahey

was his commanding officer. On cross-examination, Fahey

testified that during petitioner’s seven years as a Watch

Commander under his supervision, he found petitioner to

he an effective police officer and had no bona fide com-

plaints that he was dishonest. (Tr. 258)

As to Count II,** the evidence was as follows:

Robert J. Medow testified that he was president of the

corporation which owns and holds the liquor license for

Southport Crown Liquors at 3709 N. Southport, Chicago.

(Tr. 326-28) During the period January 1969 through

** A rather detailed summary of the evidence as to Count II is in-

cluded herein to give this Court an opportunity to consider the im-

pact of errors claimed in ths Petition in the light of the factual

framework of the entire trial, per Kotteakos v. United States, 328

U.S. 750, 763-65 (1946), and Chapman v. California, 386 U.S. 18,

24 (1967).

App. 14

July 1971, petitioner came to his place of business on the

average of every 5-6 weeks to two months, and on each

such occasion Medow gave petitioner a case of V.O. whis-

key. (Tr. 332-34) Over objection, the witness testified

that in May or June of 1967 he had a conversation with

petitioner about giving him whiskey, and that the occa.

sions in 1969 through 1971 when he gave petitioner whis-

key were a continuation of a practice which started in

1967. (Tr. 334-36) Petitioner’s motion for mistrial was

denied. (Tr. 336) Medow testified that at this initial 1967

conversation, at which only he and petitioner were present

(Tr. 335), petitioner told him he had seen Medow’s de-

livery trucks delivering whiskey and beer to taverns, and

asked him didn’t he know that was against the law. Medow

said he knew it was against the law, and that petitioner

‘related that he had come up against the same kind of

problem”’ previously. (Tr. 336) ‘‘He said he had come to

some type of arrangement with the other retail liquor

owner, Rothchild by name.’’ Petitioner’s motion for mis-

trial was denied. (Tr. 337) Medow testified petitioner

said, ‘‘I could use a case of whiskey,’’ and he gave him

one (in May or June 1967). (Tr. 337) (Renewal of motion

for mistrial, denied. Tr. 337-38) Medow stated he felt

threatened by petitioner because he (Medow) was doing

something ‘‘slightly irregular’’. (Motion for mistrial, de-

nied. Tr. 338-39) After that, petitioner would call every

5 weeks to two months and say he was out of whiskey, he

could use a case of whiskey and would come to Medow’s

store, and on each occasion Medow gave him a case of

V.O. (Tr. 339) With respect to the subsequent deliveries

of cases of whiskey by Medow to petitioner, Medow tes-

tified :

‘‘T never changed my state of mind. The other reason

would be that if you are a retail liquor license holder

————

Orta he tae, ee ee dk Ny 5 ng |

App. 15

in Chicago, Police Captains are very important. If I

had a choice of having one as a friend or enemy, it

would be better to have a friend. I don’t know what

the Captain intended to do, but that is the way I felt.’’

(Tr. 340)

Petitioner never offered to pay for a case of liquor. Each

case of V.O. which Medow gave petitioner came from the

store’s inventory. A case of V.O. retailed for from be-

tween $60 and $66 in 1969. Medow directed his co-worker,

William Nass, to allow petitioner to obtain cases of V.O.

liquor from the store. Each case contained 12 fifths of

V.O. whiskey (Tr. 340-42)

The government was permitting to elicit on direct, over

objection, that Medow had been granted immunity as re-

gards his testimony. (Tr. 326-27)

On cross-examination, Medow testified that his brother-

in-law, an attorney with offices in Medow’s building, ad-

vised him to ask for immunity. (Tr. 343-45) Medow con-

tinued giving petitioner cases of V.O. until sometime in

1973. Petitioner purchased liquor from Medow’s store

for petitioner’s daughter’s wedding in October of 1970.

(Tr. 345-46) The conversation relative to this purchase

was a friend'y one at the store; Medow and petitioner had

many such friendly conversations over the years they had

contact. (Tr. 346) In 1969 or 1970, on one occasion, Medow

had a conversation with petitioner at petitioner’s office at

the police station, wherein Medow tried to intercede on

behalf of a friend of his who was a bar owner. (Tr. 346-

47) Medow was aware that petitioner’s daughter, who is

Irish, was marrying a Jewish boy. Petitioner needed

champagne for the wedding; Medow helped him select the

champagne and gave him a good price on it. (Tr. 348)

Medow’s business is in the nature of a large discount

App. 16

liquor store rather than a local bar. (Tr. 348-49) In the

past, Medow had made gifts to other police officers, both

at Christmas time and on other occasions, both of cash

and liquor. (Tr. 349) During the period of time covered

by the indictment, January 1969 to July 1971, Medow

never asked petitioner for an improper act of any form.

(Tr. 351) If there was a choice on his part, Medow testi-

fied, he wanted petitioner as a friend. (Tr. 351) Medow

had refused to speak to various investigators petitioner’s

counsel had sent to interview him (Tr. 350), but on one

occasion Medow sold one of petitioner’s investigators a

ease of wine for a very good price. (Tr. 352) Neither that

investigator nor the court reporter who accompanied hin:

to Medow’s establishment threatened Medow in any wav.

(Tr. 352-53) Medow was invited to petitioner’s house to a

party. (Tr. 353) Medow gave petitioner some decoration»

—three stuffed leprechauns—-for use at that party. (Tr.

353-54)

During the period from January 1969 to July 1971, peti-

tioner did not threaten Medow. (Tr. 354)

When Medow was interviewed by the FBI, he was never

told that he (Medow) had committed any crime (Tr. 355),

and he never stated that petitioner had extorted him. (Tr.

356)

Petitioner never threatened to put Medow out cf busi-

ness or to take his license. (Tr. 356)

On one occasion Medow asked petitioner to come out

and take a look at Medow’s trucks and parking area from

a security standpoint; the parking area is not visible from

the street. While Medow did not remember exactly, he

testified it was possible that he had asked petitioner to

keep a lookout in the evening for the trucks in the back,

and also to look out for and keep his eye on Medow’s store,

which contained substantial inventory. (Tr. 357-58)

~ et ere

App. 17

On redirect, Medow testified that when petitioner pur-

chased alcoholic beverages for his daughter’s wedding, he

asked how much it was going to cost. He never asked how

much the cases of V.O. would cost. (Tr. 358-59) Medow

did not consider the cases of V.O. as gifts; he considered

that petitioner had threatened him for something he knew

Medow was doing that was ‘‘slightly irregular,’’ and

Medow felt it was ‘‘sort of blackmail.’’ (Motion for mis-

trial, no ruling thereon.) (Tr. 359) Medow’s trucks con-

tinued making deliveries to liquor stores during 1969

through 1971 (Tr. 359-60); he stopped in 1972 after the

State stopped them. (Tr. 360) If petitioner had not been

a Police Captain, Medow would not have given him liquor

on a regular basis. (Tr. 360) (Objection, overruled)

Medow continued to give petitioner cases of V.O. even

after his trucks stopped delivering to retail establishments

in January 1972. (Tr. 361)

William Nass testified that he has been employed by

Medow’s establishment for the past 15 years. (Tr. 362)

About four or five years ago (Tr. 363) Nass was told by

Medow that petitioner was coming in, and if he came in

to give him a case of liquor. (Tr. 364) Petitioner did not

pay or offer to pay Nass for the liquor. (Tr. 364-365)

During the period January 1969 to July 1971, Nass per-

sonally allowed petitioner to obtain cases of liquor sev-

eral times, under orders from Medow. (Tr. 365) The

liquor he allowed petitioner to have were cases of fifths

of V.O. whiskey. (Tr. 366)

On cross-examination, Nass testified that on each of the

occasions when petitioner would get whiskey from Nass

after getting instructions from Medow (Tr. 366-67), peti-

tioner came into the establishment himself; he was al-

ways pleasant; Nass never saw him threaten or get hos-

App. 18

tile with anyone, neither with himself (Nass) or Medow,

or anyone else. (Tr. 367) Nass knew petitioner to be

Watch Commander in the district. At the time, Nass

never thought of calling the police because petitioner was

getting whiskey from Medow. (Tr. 367) Nass never heard

Medow state that he wanted petitioner to break the law,

or that he wanted something from petitioner that would

violate the law, for giving petitioner whiskey. (Tr. 367-

68) Nass testified he was Medow’s right-hand-man; when

Medow was not there, Nass was in charge; Nass has a key

to the establishment, wherein liquor worth many tens of

thousands of dollars is kept. Medow has confidence in Nass.

Nass’s dealings with petitioner were always amicable.

(Tr. 368)

The government presented evidence that both liquor

stores purchased alcoholic beverages from outside Illinois

for resale in Illinois. (Tr. 291-326)

After the government rested (Tr. 369), the court de-

nied petitioner’s motion for acquittal at the close of the

government’s case. (Tr. 378) The defense rested. (Tr.

390) The court reserved ruling on petitioner’s motion

for directed verdict at the close of all the evidence (Tr.

446) and denied said motion as to Count II after the

verdict was returned. (R. 57)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.