# Petition — Callahan v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 1015

## Text

, Supreme Court, U. 3
me € ILE Y

SEP 5°

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

14

ti

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

18

23

Ll

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

iv
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

Vv
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

vi
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?

3

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

4

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

6

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 =~

7

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.

8
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

rr

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 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)

10
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)

11

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. )

12

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).

13

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.)

14

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.

15

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

16

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)

17

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).

18

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)

19

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)

20

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).

21

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.

22

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)

23

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).

4.

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).

24

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.

25

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

26

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.

5.
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.

“.—/»

27

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)

28

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)

29

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.

30

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)

31

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)

32

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)

33

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)

34

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

35

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.

36

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.

37

‘‘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.

38

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 =

39

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).

40

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)

41

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).

42

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,
v.
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.

I.
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.

V.
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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0988%3A1. Public record. Not legal advice.