Petition — Peabody v. United States

7671776.

Supreme Court, U. 3

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JUN 13 1977

IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

UNITED STATES OF AMERICA,

Plaintiff-Respondent,

vs.

ROOSEVELT PEABODY,

Defendant-Petitioner.

PETITION FOR

WRIT OF CERTIORARI

Edward L. Welch

Attorney at Law

MICHAEL RODAK, JR, CLERR

—

216 North Main Street

P.O. Box 93

Edwardsville, Illinois 62025

PHONE: (618) 656-4744

IN THE SUPREME COURT OF THE

UNITED STATES OF AMERICA

UNITED STATES OF AMERICA,

Plaintiff-Respondent,

vs.

ROOSEVELT PEABODY,

Defendant-Petitioner.

PETITION FOR

WRIT OF CERTIORARI

Edward L. Welch

Attorney at Law

216 North Main Street

P.O. Box 93

Edwardsville, Illinois

PHONE: (618) 656-4744

62025

TABLE OF CONTENTS

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TABLE OF CASES

Dennis v. United States, 384 U.S. 855,

16 L.Ed.2d 973, 86 S.Ct. 1840 (1966)

Schaeffer v. United States, 362 U.S. 5ll,

4 L.Ed.2d 921, 80 S.Ct. 945

Stirone v. United States, 361 U.S. 212,

4 L.Ed.2d 250, 80 S.Ct. 270 (1959)

United States v. Baum, 482 F.2d 1325 (2d

Cir. 1973)

United States v. Echeles, 352 F.2d 892 (7th

Cir. 1965)

United States v. Schuford, 454 F.2d 772 (4th

Cir. 1971)

DECISION BELOW

This is a petition addressed to the sound dis-

cretion of this Court to review the unpublished

Order of the United States Court of Appeals for the

Seventh Circuit dated April 15, 1977, petition for

rehearing and suggestion for rehearing in banc be-

ing denied May 13, 1977, which Order denied peti-

tioner's appeal from a judgment of conviction en-

tered by James L. Foreman, U.S. District Judge

for the Eastern District of Illinois, entered May

3, 1975. The petitioner was sentenced to the cus-

tody of the Attorney General for a period of two

years and fined Five Thousand Dollars ($5,000.00).

JURISDICTION

The petitioner was convicted of violating 18

U.S.C. §1951, (Count 1) a conspiracy charge. He

was also charged with violating 18 U.S.C. §1961

(Count 21), however, the trial Court granted the

petitioner a new trial as to the latter charge on

the ground that there was a fatal variance between

the charge contained in the indictment and the

proof adduced at trial.

The trial Court in an Order dated August 13,

1975, denied petitioner's motion fo~ new trial as

to 18 U.S.C. 1951 (Count IL). Since that charge is

the only one for which the petitioner stands con-

victed, the petition herein is addressed solely to

it. (Subsequent to May 13, 1977, the date the

Seventh Circuit Court of Appeals denied the peti-

tioner's motion for rehearing and suggestions for

rehearing in banc, the respondent dismissed Count

21 of the indictment which charged a violation of

18 U.S.C. 1961.)

The April 15, 1977, Order of the Court of

Appeals for the Seventh Circuit entered is in-

cluded in the appendix hereto. The petition for

rehearing was denied by the Seventh Circuit May 13,

1977.

athe

This Court has jurisdiction to review the

April 15, 1977, Order of the Seventh Circuit Court

of Appeals pursuant to 28 U.S.C. § 1254.

QUESTIONS PRESENTED FOR REVIEW

I. THE BASIC QUESTION PRESENTED FOR REVIEW

IS WHETHER OR NOT THE PETITIONER WAS PREJUDICED

AND THUS DENIED DUE PROCESS BY BEING MADE TO STAND

TRIAL ON ONE CHARGE WHEN THE PROOF WITH RESPECT TO

ANOTHER CHARGE BEING TRIED SIMULTANEOUSLY VARIED

FATALLY FROM THE INDICTMENT.

Il. ‘THE SECOND QUESTION PRESENTED FOR REVIEW

IS WHETHER OR NOT THE PETITIONER WAS JOINED PRE-

JUDICIALLY WITH OTHER DEFENDANTS, AND WHETHER, AS

A RESULT OF SURPRISE TESTIMONY THE PETITIONER

SHOULD HAVE BEEN SEVERED DURING THE TRIAL.

STATEMENT OF THE CASE

Petitioner stands convicted of having con-

spired to violate 18 U.S.C. § 1951. Charles

Merritts, Hary Tharp and Fred Kimbrough were

alleged co-conspirators, however, each was found

guilty of also having violated 18 U.S.C. § 1961.

Merritts and Kimbrough were also convicted of other

- charges.

Petitioner was tried jointly with the above

named alleged co-conspirators, and also with

Leonard Johnson, who was charged and convicted of

violating 18 U.S.C. § 1951, § 1962, perjury and mail

fraud, and Raymond Cason, who was charged and con-

victed of violating 18 U.S.C. § 1951, § 1962 and

perjury.

Merritts, Kimbrough, Tharp and petitioner were

elected members of the Board of Education of

Illinois School District 189 which is located in

East St. Louis, Illinois and its environs. Tharp

and petitioner were elected to the Board in April

1974 and indicted on the charges herein in October

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1974.

Johnson and Cason were the Business Manager

and Purchasing Agent, respectively of District 189.

Each had been employed by the District for a sub-

stantial period of time prior to April 1974 when

petitioner was elected to the Board.

Petitioner and Merritts, Kimbrough and Tharp

were charged with having conspired to extort proper-

ty from vendors doing business with District 189

(Count 11). Petitioner was also charged with en-

gaging in a pattern of racketeering in violation

of 18 U.S.C. 1961 (Count 21). Merritts, Kimbrough,

Tharp, Johnson and Cason were also charged along

with petitioner with having violated 18 U.S.C. §

1961 (Count 21).

Originally, there were 21 counts of the in-

dictment involving seven different defendants,

however, the trial Court, at the suggestion of the

Government and over the opposition of the petition-

er, separated Counts 8 and 1] through 21 from the

other counts for trial. All defendants except

Phillips were tried as a result of this separation,

and all defendants tried were found guilty on all

counts.

Following the trial, petitioner filed a motion

for a new trial claiming surprise during the course

of the trial at certain evidence offered by the -

Government concerning alleged substantive criminal

offenses with which petitioner had not been charged,

and the Government filed an affidavit supporting

petitioner's claim of surprise.

The affidavit filed by the Assistant U.S.

Attorney who tried the case contains the following

statement:

"Until Kammermeyer testified at

trial, the Government was not

aware of (a) a $500 payment to

Cason to be divided between

Peabody and Tharp; or (b) of

any golf clubs being given to

Peabody; or (c) of Peabody's

obtaining of a calculator and

abe

recorder in early May from

Kammermeyer subsequent to the

conspiratorial meeting."

The trial judge granted petitioner's motion

for a new trial with respect to Count 21 but de-

nied his motion as to Count 11 contending that the

surprise evidence could be construed as overt acts.

On November 12, 1974, the trial Court entered

a pretrial discovery order which provided in part:

"(3) If additional discovery or

inspection is sought, defendant's

attorney shall confer with the

appropriate Assistant United

States Attorney within ten (10)

days of the arraignment with a

view to satisfying these re-

quests in a cooperative atmos-

phere without recourse to the

Court. The request may be oral

or written and the United States

Attorney shall respond in like

manner."

* * *

"(5) Any duty of disclosure and

discovery set forth above is a

continuing one and the United

States Attorney shall produce

any additional information

gained by the government." ;

On February 6, 1975, a motion was filed by the

petitioner seeking a separate trial on the ground

that he would possibly call one or two of the co-

defendants. On that same date the petitioner also

filed motions to dismiss the indictment for im-

proper joinder of defendants and transactions.

The Government's chief and only witness

against the petitioner with respect to the sub-

stantive charges was James Kammermeyer, who testi-

fied that before he had ever met petitioner he gave

defendant Cason $500 to be divided between petition

er and defendant Tharp, that he bought a set of

golf clubs for petitioner but couldn't recall when

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he bought them or to whom he gave them, and that he

gave petitioner a calculator and tape recorder at a

meeting which petitioner allegedly attended at

which James Kammermeyer and Kimbrough allegedly dis-

cussed "kickbacks."

Petitioner vigorously objected to evidence re-

lated to any conversation between Kammermeyer and

Cason regarding the alleged $500 payment, however,

this testimony was admitted on the "joint enter-

prise" theory, that is, since Cason and petitioner

were both charged with violating 18 U.S.C. §1961,

otherwise hearsay testimony was admissible against

the petitioner. _

During his opening statement, Assistant United

States Attorney, Strellis, told the jury, "Where

Mr. Peabody talked about getting a dishwasher and

dryer for his personal advantage." Petitioner's

counsel expressed surprise, and asked that the in-

dictment be dismissed or that a mistrial be grant-

ed on the basis of the opening statement of the

Government because the Grand Jury minutes showed

that Kammermeyer had told the Grand Jury that pe-

titioner had allegedly asked where he could get a

good buy on a washer and dryer and that this had

been left out of the Government's opening state-

ment.

Later in the trial, the petitioner renewed his

motion for a mistrial or in the alternative that

the indictment against him be dismissed as follows:

"MR. WELCH: Your Honor, may I renew my motion

for a mistrial on behalf of the Defendant Peabody,

or in the alternative that the indictment against

him be dismissed, based upon a deliberate misrepre-

sentation by the government in its opening state-

ment to the jury. I have before me the evidence

of the transcript of the testimony of James Kammer-

meyer, Jr. that was presented to the Grand Jury on

or about October 22, 1974. This is the only evi-

dence that I have been provided with in connection

with what this man is going to say. I have not

interviewed him or anything else like that. Now

I want to read to you a question and an answer that

-6-

is not taken out of context. Question: Mr. Pea-

body requested from you a washer and dryer and TV

set? Answer: --now this answer is by Mr. Kammer-

meyer ~ ‘Well, he said he wanted a good buy on a

washer and dryer, but he also needed a TV set but

everybody said that." Now the government has stood

before this jury and deliberately said that Mr.

Peabody in the context of Tharp allegedly being

given golf balls -- golf clubs - at a value of

$400. and that Mr. Peabody begged for a washer

and dryer - asked or was trying to get as a kick-

back a washer and a dryer when that testimony sim-

ply does not sustain that. Now Judge, I cannot --

why should I be put te the burden of correcting his

opening statement? It is known what that evidence

was.

THE COURT: Well, they have got to prove it.

MR. WELCH: But Your Honor, wait a minute.

The prejudicial effect of that sitting up there

before that jury, how can you eradicate that from

their minds? That's what I am saying. It's in

their minds now, and how can it be eradicated. It's

unfair - it's unfair, Your Honor, and it's not a

matter of just proving it. I can understand some

things where they prove this and because of this

they have to prove that. But when you get up and

try to create the impression in the minds of the

jury that a man did one thing when the evidence

clearly shows - it never should have been brought

out unless it was going to be brought out correct-

ly. That's what's unfair about it, Your Honor. I

am talking about basic fairness here.

THE COURT: Do you want to respond to it?

MR. STRELLIS: Well, Your Honor, I think the

testimony will support my statement - my opening

statement."

During Kammermeyer's examination the Court ob-

served: "Well, it's hard for me, as extensive a

discovery as you have here, where all of the way

from the tapes that anybody could be surprised in

this proceeding. MR. WELCH: Well, I am. I am

surprised."

Counsel for petitioner was specific in stating

that he was surprised at Kammermeyer's testimony

that he gave $500.00 to Cason to give $250.00 to

Tharp and $250.00 to petitioner. He stated that he

had talked to the United States Attorney, his

assistants, petitioner and Cason and this is the

first occasion that he had ever heard of it. He

further stated that he had talked to counsel for

Cason, and to Cason, and that Cason was willing to

swear in an affidavit that he did not give $250.00

to petitioner nor did he receive $250.00 to give to

petitioner.

Counsel for petitioner also objected on the

grounds that it was not alleged that petitioner had

engaged in any sort of conspiracy action with Cason

and that the transaction would be hearsay as to

petitioner unless Count 21 was a conspiracy count

where the evidence against one would be evidence

against all.

Petitioner moved for a severance on the basis

of the alleged $250.00 payment to Cason allegedly

for petitioner and on the ground that it was a

surprise. The motion was denied.

In discussing whether or not the Government

had proved its case pegpeg- Rnaeraen a motion

for dismissal at the end of tH® Government's case,

the Assistant United States Attorney stated: "Mr.

Peabody, we have again specifically limited the

proof to Section 1951 which would involve Count 11

of this indictment, and also the receipt of other

property, namely a calculator and tape recorder

which Mr. Kammermeyer testified he gave at the May

meeting." In response to this position, counsel

for petitioner stated:

"MR. WELCH: Your Honor, I am almost at a

position where I am almost speechless after the

government has stated its position with respect to

Count 21 as it relates to the Defendant Peabody,

and I say that in ali candor. All along I think

we have been led to believe that the substantive

counts, 8, 11, 12, 13, 14, 15 - the other counts -

and the allegations contained therein would be the

ate

sum and substance of Count 21. Your Honor, I am

at this point in time unprepared to defend the

Defendant Peabody against the allegations contain-

ed in Count 21. When the government tells the

Court that it is using as substantive evidence the

fact that Mr. Kammermeyer testified that Mr. Pea-

body allegedly received a tape recorder and he

allegedly received a calculator. I have gone

through the Grand Jury minutes. I have gone

through the statement provided to the FBI. I have

gone through every single document that the govern-

ment has provided in connection with this case on

more than one occasion. I did not then nor do I

now see anything relating to the alleged receipt of

a tape recorder or a calculator. As a matter of

fact, even as late as the opening statement the

allegation was supposed to have been in connection

with a washer and dryer. Now I am being perfectly

candid about this, Your Honor. I cannot defend him

in view of the government's now stated position,

and I think the Court will acknowledge that through

out it was discussed in terms of the substantive

allegations of those counts which had been joined,

so that we had a specific date, a specific time,

a specific item that was supposed to have been

done. Now we are being-told that as evidence of

guilt of 21 and as a substantive element of that

guilt we are being told a tape recorder and calcu-

lator. But yet nowhere has that information been

provided and I think the government would agree

that nowhere in that discovery material is that

found. Not a single place, and I cannot defend

and ought not be required to defend to that, Your

Honor, and I urge the Court to dismiss it as to

Mr. Peabody."

In further discussing this matter the follow-

ing occurred:

"MR. WELCH: Your Honor, before you leave,

I would like to ask the Court to reconsider or

ry le on the Defendant Peabody's motion to dismiss

Couat 21, both as to the lack of proof and both as

to the question of fairness, and I will be perfect-

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EEO ——————— ee

ly candid with you, Your Honor. I do not have any

knowledge and did not have any knowledge of any of

those allegations relating to property prior to

this time, and I am not prepared to go ahead. I

don't think the Court ruled on that.

THE COURT: As to what?

MR. WELCH: On my motion to dismiss as to Pea-

body on the grounds of surprise or grant me a con-

tinuance as to that motion.

THE COURT: On Count 21?

MR. WELCH: Yes, as to that charge.

THE COURT: Well, Ed, I have held him in here

on this other, and if he is in on the other, he

has got to be in on 21. [emphasis added]

MR. WELCH: No, I don't think that's the gov-

ernment's theory. He is in on ll, on 21 he is in

only because he allegedly received the recorder and

calculator. Am I not right, Mr. Nester?

MR. SCHWARZ: No, not only - he is also in

because of his involvement in the conspiracy.

MR. WELCH: Well, that's what I understand.

Let me repeat - if he is in because of what is

alleged in 11, that would be one thing. But the

government is saying he is in the Count 21 because

of what is alleged in 11, plus and in addition to

the receipt of the tape recorder and the calcula-

tor which they alleged, and I am saying if that

plus that the government is contending that puts

him in Count 21, and I am saying that I didn't

know about that, and I think the government will

tell you that I didn't know about it. But for the

plus I would not be in Count 21, and I think that's

the government's position. Am I right, Mr. Nester?

MR. NESTER: The government concedes that we

have to prove two counts - two criminal acts that

are enumerated under 1962. That would be the

activities under the racketeering.

MR. APOIAN: And the same thing would be true

for Mr. Tharp. Isn't that correct?

MR. NESTER: Yes, sir.

MR. WELCH: So I don't know about it - see,

I didn't know about the alleged illegal activity

-10-

of the tape recorder and the calculator. I did not

know about it, Judge. I honestly did not know

about it.

THE COURT: Well maybe -- Ed, I want to go

ahead. I'm going to deny your motion and you have

got it in the record and if you are truly surprised

and there is some explanation or lack of explana-

tion for that, then that’s there. [emphasis added]

MR. WELCH: Well, could the government state

its position, Your Honor, so we'll have it?

MR. SCHWARZ: Well, we stated the position.

We have got to prove both of these things.

MR. WELCH: About my knowledge.

MR. SCHWARZ: I would be willing to state that

I don't think Ed had knowledge of the tape record-

er or the calculator before the trial. I don't

know that he did. How about you, Mike?

MR. NESTER: I don't know. To be perfectly

candid, I don't know.

MR. APOIAN: And the same thing would be true

about the golf clubs for Mr. Tharp.

MR. SCHWARZ: No. Mr. Tharp is in there a

whole lot deeper than Mr. Peabody is.

MR. WELCH: Your Honor, please - please don't

make up - I ask the Court, please don't just rule

for the sake of ruling so that we will have to go

through this. I think the Court ought to consider

the argument being made: and I honestly represent

to this Court that I never understood nor knew

that there was a plus factor in there. r

THE COURT: Well Ed, the problem with that

is - you want me to make an inquiry as to whether

you should have or where we are on that.

MR. WELCH: I did everything in my power to

find out what was allegedly given to Peabody, and

I_was told that he was not given anything except

what's in the discovery - it's in the discovery -

and I'm representing to the Court that nothing in

the discovery was about any tape recorder or cal-

culator. That's what I am representing to the

Court. That is what I am saying to the Court. I

think I deserve more than that, Your Honor. I

alle

think I deserve more than that. I am asking the

Court to give me more than that.

THE COURT: Well, the only way I could do it

would be to go through the discovery, Ed, to see

about that.

MR. WELCH: Well, I asked the Court to recon-

sider it and asked the Court to go through it. I

will provide the discovery through one of the

clerks. It's only four or five pages of Grand Jury

testimony and his statement to the FBI - that's

all it is - there are other records, but none of

that is alleged. And I am being perfectly honest

and I think the government - it probably came as

a surprise to the government to be perfectly honest

about it. That's why I asked the Court to please

fill me out on Count 21.

THE COURT: I deny your motion." [emphasis

added]. .

The Court in its written Order of August 13,

1975 found that: "Counsel for defendant Peabody

reiterated throughout the trial his surprise as

the evidence disclosed certain other instances of

misconduct on the part of Peabody. Counsel for

defendant Peabody seems to acknowledge that he

knew of the allegations of the washer and dryer

prior to the time of trial, but that he was unaware

of the golf clubs, the $500 payment and particular-

ly the calculator."

"The Court feels that the introduction of

evidence of other acts of misconduct on the part

of Peabody constituted a fatal variance as to

Count XXI and that Peabody was truly surprised

thereby." (Appendix)

Thus, petitioner detrimentally relied upon

representations concerning discovery and was mis-

led by circumstances beyond the control of the

Government, the Court or the petitioner.

During the course of argument for the motion

for a new trial the Government indicated that the

alleged receipt of the items of property by pe-

titioner were in fact overt acts which were ad-

missible with respect to Count 11. In that

=} 9=

connection, the Government stated for the first

time: "Yes, Your Honor, the government anticipa-

ted and thought that it could bear its burden of

proof of convicting the defendant, Mr. Peabody,

guilty beyond a reasonable doubt in reference to

Count 21 by the two substantive acts of Count 1l

and also the solicitation or ‘attempt to obtain the

washer and dryer. But during the course of the

trial other criminal acts were testified to by Mr.

Kammermeyer and the government felt that with

reference to Count 11 since it was a conspiracy --

a conspiracy was charged and those other substan-

tive acts could be also termed overt acts with

reference to Count 11, that in fact they were ad-

missible and would not be prejudicial."

The petitioner did not have an opportunity

to indicate to the Probation Officer his version

of what occurred in view of the fact that a new

trial for Count 21 was pending. Therefore, im-

posing sentence on Peabody the Court was unable to

take into account Peabody's version of what

occurred. Peabody specifically objected to the

unreadiness for sentencing and his objection in

that regard was overruled.

ARGUMENT

The petitioner strongly urges that the Courts

below failed to properly apply the decision of this

Court in Stirone v. United States, 361 U.S. 212,

4 L.Ed.2d 250, 80 S.Ct. 270 (1959), and the Order

appealed from is in substantial conflict with the

Second Circuit's holding in United States v. Baum,

482 F.2d 1325 (2d Cir. 1973), United States v.

Echeles, 352 F.2d 892 (7th Cir. 1965), and United

States v. Shuford, 454 F.2d 772 (4th Cir. 1971).

In order to fully understand the development

of the sequence of events in connection with this

case, it is important to note the differences in

the Government's position as the facts developed.

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The Indictment

With respect to Count 21 the Government alleg-

ed in the indictment that petitioner along with the

defendants, Tharp, Kimbrough and Merritts, conspir-

ed to affect commerce "by obtaining property from

James W. Kammermeyer, Jr." and that the defen-

dants had "conspired to receive money that they

were not entitled to" in consideration of their

official acts as School Board Members. The Count

1l further provided that as an overt act petitioner

along with defendants Tharp and Kimbrough travelled

to Kammermeyer's office in St. Louis where an allege

ed discussion took place conerning kickbacks, and

that in July 1974 petitioner, Merritts and Kim-

brovgh discussed kickback payments that were to

be made to James W. Kammermeyer.

Government's Opening Statement

In its opening statement the Government stat-

ed that Count 11 of the indictment charges petition

er, Merritts, Kimbrough and Tharp with obtaining or

conspiring to obtain money under color of official

right in receiving money that they were not en-

titled to in consideration of their official acts.

The Government also made reference to the

alleged trip by petitioner, Tharp and Kimbrough to

Kammermeyer's office and the alleged discussions

that took place. Reference was also made to an

alleged telephone call from Washington,D.C. to Mr.

Merritts and that everybody was allegedly present,

namely, Merritts, Tharp and petitioner, and a

discussion took place concerning kickbacks. Final-

ly, the Government stated that there would be evi-

dence "where Mr. Peabody talked about getting a

dishwasher and dryer for his personal advantage."

Government's Position at Close of Government's

Case

After the testimony was in, the Government

in seeking to sustain its burden of showing that

it had submitted a prima facie case stated with

regard to Count 21: "Now in regard to the

government's proof in this matter, that we must

prove at least as the statute requires, at least

xy

two racketeering activities.... Mr. Peabody, we

have again specifically limited the proof to

Section 1951 which would involve Count 11 of this

indictment, and also the receipt of other property,

namely a calculator and tape recorder which Mr.

Kammermeyer testified he gave at the May meeting."

Upon stating its position regarding the

alleged receipt by petitioner of a calculator and

recorder in connection with Count 21, the attorney

for petitioner stated that he was virtually speech-

less in that he was not prepared to defend pe-

titioner against the allegations contained in

Count 21 because none of the documents nor the

indictment itself had indicated anything about an

alleged recorder or calculator and that the allega-

tion was supposed to have been in connection with

a washer and dryer. Counsel for petitioner re-

iterated his request to the Court that Count 21

be dismissed. In addition to asking that the count

be dismissed, counsel for petitioner asked that a

continuance be granted as to Count 21 because of

the incorporation of the alleged receipt of the

recorder and calculator in Count 21. Motions for

continuance or dismissal of Count 21 were denied

and petitioner was kept in the trial.

Government's Closing Argument

In its closing argument the Government talk-

ed about the May 1974 meeting. The Government

stated in connection with Count 11 that the evi-

dence allegedly showed that petitioner mention-

ed to Kammermeyer that gifts had been provided

for other School Board Members and Kammermeyer

said he “looked around his office and provided a

calculator for Mr. Peabody." Further in its clos-

ing argument the Government stated with respect to

Count 21: "The two violations again must be only

with reference to Section 1951. Those would be

Count 11, the conspiracy to violate 1951, and

also the other property that he received which

was on the date of the meeting in May 1974 at

World Wide Industries. The testimony of Mr.

Kammermeyer was that he gave Mr. Peabody a

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calculator. ..."

In addition, the Government in its closing

argument referred to the alleged conversation be-

tween petitioner and Mr. Kammermeyer concerning

the washer and dryer (which Mr. Kammermeyer admitt-

ed he told the Grand Jury petitioner had asked

for a good buy) and in connection with all of such

testimony the Government testified that the re-

ceipt of property induced under color of official

right would be the violation.

In referring to defendant Tharp the Govern-

ment stated that he would be in the same category

as petitioner and that in that connection the

Government referred to Kammermeyer's testimony

about Cason having said that Kammermeyer's repu-

tation for making kickbacks was low and that he

should "make a token payment of $250.00 both to

Mr. Tharp and Mr. Peabody. The testimony is that

in fact Mr. Kammermeyer gave this $500.00 to Mr.

Cason for these two individuals. ..."

Argument on Post Trial Motion

At the post trial motion the Government

argued that the receipt of the calculator and re-

corder were made overt acts with respect to Count

1l and therefore did not constitute an amendment

to the indictment and petitioner was not required

to receive notice of same.

Thus, although the Government contemplated

when it originally drafted the indictment, as

stated by the Government at the hearing on the

post trial motion, that Count 21 would only em

brace evidence concerning the alleged statement

by Mr. Peabody that he wanted to get a good buy

on a washer and dryer, and the allegations con-

cerning the alleged conspiracy as alleged in

Count 1l, the fact is that the Governmen® in rv.

sisting petitioner's effort to have Coun? “1 “t:-

missed at the close of the Government’. cuse, :

prior to petitioner having an opportunity to testi-

fy, or in the alternative the attempt by petitioner

at the close of the Government's case to have the

matter continued on the grounds of surprise, the

-15.a-

Government took the position that Count 21 did in

fact embrace the receipt of the calculator and

tape recorder and that the Government was in fact

relying upon same. In other words, at the juncture

the Government did not take the position that the

calculator and tape recorder. constituted overt acts

which were allegedly proof of a conspiracy.

In addition, in its closing argument, the

Government specifically made reference to those

things allegedly received by petitioner at the

May 1974 meeting as being items which were unlaw-

ful. It was only after the Government was required

to admit that this testimony concerning the calcu-

lator and tape recorder, as well as the alleged

monetary gift to Cason allegedly for petitioner

and golf clubs, constituted a surprise that the

Government took the position that these items were

all overt acts with respect to Count 11 rather than

substantive matters which would be proof of a

violation of Count 21. But at that point it was

too late for the Government to take the position

that these were but overt acts since petitioner

had been kept in the trial with respect to Count

21, and he was denied a continuance on Count 21,

on the basis of the Government's representation

to the trial Court that the calculator and record-

er were in fact a part of the illegal property

allegedly received by petitioner as a substantive

act constituting a violation of Count 2l. |

It is crystal clear that the Government may

not amend an indictment by introduction at trial

of proof of a substantive crime not charged in the

indictment. Stirone v. United States, 361 U.S. 212,

4 L.Ed2d 252, 80 S.Ct. 270 (U.S. 1959). Thus, de-

fendant petitioner was in fact tried on Count 21

for the substantive offense of receiving a cal-

culator and tape recorder when such items were

not and could not have been within the conten

plation of the Government, the Grandy Jury or any-

one else. Therefore, this constituted an amend-

ment of the indictment and violated the principle

set down in Stirone.

-16-

Standards for reversal where there is a vari-

ance between the allegations and the proof include

whether or not the defendant was warned sufficient-

ly to prepare an adequate defense so as not to be

surprised at trial and whether or not such trial

would provide adequate protection against double

jeopardy.

Clearly, petitioner was surprised with respect

to the allegation concerning the calculator and

recorder. (Calculator and computer are used inter-

changeably since they were used interchangeably at

the trial, but the fact is that Peabody allegedly

received two different items at the May 1974 meet-

ing).

In addition to the element of surprise, and

the record fully supports the trial Court's find-

ing in his Order granting petitioner a new trial

as to Count 21 that petitioner was in fact sur-

prised by such allegations, there is the question

of jeopardy presented.

If petitioner takes the stand and admits the

receipt of these two items, he could be possibly

indicted on the grounds of a substantive viola-

tion of 18 U.S.C. §1951.

In addition, it would appear that the Govern-

ment should have agreed at the close of its case

that the surprise items in question could not con-

stitute and would not constitute any evidence

against petitioner and then petitioner would have

been in a position to defend himself against the

charges in Count ll.

It should be pointed out that under the dis-

covery rules in effect in this case and the prac-

tice in the trial Court, the Government fully

discloses its “entire files" to defendants in

order to avoid problems of surprise. That is why

all parties rested comfortably on the representa-

tion that all evidence of substantive offenses had

been made known to all the parties. That is why

the Government without hesitation indicated the

surprise nature of Kammermeyer's testimony. Thus,

regardless of any motion which would have been

-17-

filed prior to the trial, there is nothing that

could have been done to prevent from occurring

what in fact occurred, that is, Kammermeyer testi-

fying about substantive offenses which Kammermeyer

had never disclosed to the Government prior to

trial and therefore which the Government had not

disclosed to petitioner.

In that context, it was impossible for pe-

titioner to present a defense as to these matters

since he was unaware of either the factual exist-

ence of such claims, and also of the legal import

of such claims. The entire occurrence had a

chilling effect on petitioner. Thus, if the Court

had granted a continuance or dismissed Count 21,

then petitioner would have been able to defend

himself against Count 11, including the alleged

overt acts. That is in essence what petitioner

requested at the end of the Government's case

when he moved that Count 21 be dismissed so that

he would know exactly what the charges were against

him and his explanation for all that occurred could

be given.

The fact that petitioner did not and could not

take the stand and defend himself was more than a

tactical question; in essence it was a determina-

tion that no person should be made to stand trial

on substantive offenses for which he could be

punished substantially without knowing the exact

nature and import of the consequence of his testi-

mony. In other words, if petitioner had taken the

stand he could well have placed himself in jeopardy

of new charges on the basis of uatters about which

he did not know. Had he taken the stand and ig-

nored the surprise items, that is the alleged cal-

culator, recorder, $250.00 payment, and golf clubs,

the jury could very well have concluded that he in

fact received them.

In United States v. Baum, 482 F.2d 1325 (2d

Cir. 1973), the Court reversed the conviction where

the Government had failed to disclose a witness to

the defense. The counsel for the defendant in that

case had asked for a continuance in order to pre-

-18-

pare for cross examination of the surprise witness

but the Court denied such continuance after it was

found that the defendant's counsel had the witness’

criminal record.

The Court stated that the trial judge was con-

fronted with the hard choice of interrupting the

trial or denial to the defense of a reasonable

opportunity of meeting the severe impact of the

non-disclosed witness’ testimony. It cited United

States v. Kelley, 420 F.2d 26 (2d Cir. 1969), for

the proposition that Government conduct which

smacks of a trial by ambush in violation of the

spirit of the rules should not be tolerated. The

Court held that since the case was close the defen-

dant should be given the benefit of the doubt

rather than allowing the Government to reap even

the slight possibility of benefit which it regard-

ed as unworthy of a prosecutor.

In the instant case, at the trial and through-

out, petitioner has not accused the prosecutor here

of being unworthy. At the trial, it was recognized

the very strong probability that the Government it-

self was surprised by the testimony of Kammermeyer.

However, if the holding of the United States in

Dennis v. United States, 384 U.S. 855, 16 L.Ed.2d

973, 86 S.Ct. 1840 (1966), is to have any meaning

insofar as disclosure of Grand Jury testimony,

then it appears absolutely clear that parties must

be able to rely upon the disclosed material. Other-

wise, the cardinal purpose of such cases as Dennis

would be lost. A contrary rule would encourage the

possibility of essential information being with-

held from Grand Juries or defendants in order that

the trial by ambush might once again become the

order of the day rather than the non-tolerated

exception.

The Sixth Anendment to the United States Con-

stitution provides that the accused shall enjoy

the right "to be informed of the nature and cause

of the accusation."

If that Sixth Amendment right is to have any

meaning, then clearly it must have meaning in the

-19-

instant case since petitioner was never accused of

receiving a calculator or a tape recorder or $250

prior to the trial. Such an accusation was not

even made to the Government by Kammermeyer and

that is why this Court should not permit a possible

unscrupulous witness to take advantage of this

great judicial system by disclosing to Government

officials whatever information he wishes and when

he wishes knowing full well the consequence of

such disclosures. (Kammermeyer was granted

immunity.)

There is not simply a matter of the Government

disclosing the evidence it has available to it to

a defendant; rather, this is a matter where both

the Government and the defendant are surprised as

a result of testimony by a witness. What is

claimed is that under the circumstances when the

developments occurred as they did and when it be-

came crystal clear to all parties that there was

a material difference in what was to be claimed at

the trial insofar as substantive offenses were

concerned, then petitioner should have been grant-

ed either a continuance or a dismissal of Count

21. The state of uncertainty which remained by

keeping petitioner in the trial with this surprise

material having been offered against him created

so much doubt that the defendant Peabody, contrary

to the guarantees of the Sixth Amendment of the

United States Constitution, could not defend hinm-

self because he did not know the full scope and

nature of the accusations against him and therefore

did not receive a fair trial.

In essence the trial Court recognized its

error when petitioner was granted a new tridlsas

to Count 21, however, it was then too late for the

petitioner to defend himself against Count il.

Finally, evidence which was admissible only

by virtue of petitioner and Cason being both

charged in Count 21 was used to prove “overt acts"

for a charge of conspiracy of which petitioner

stands convicted. Thus, petitioner stands con-

victed on the basis of clearly inadmissible evi-

-20-

dence as to hin.

The second issue presented is whether the trial

Court once having been alerted to severance probl-

lems should have granted the petitioner a sever-

ance notwithstanding the fact that the trial was

in progress.

Petitioner attempted to sever himself from

the other defendants because he felt an absolute

necessity of calling to the stand certain Board

Members including those Board Members who were

defendants on trial and who had served on the

Board prior to April 1974, that is, specifically

defendants Merritts and Kimbrough with respect to

the operation of the Board. In addition, petitioner

did not under any scope of the case wish to be in

a position where he would withhold or attempt to

withhold from the jury relevant background in-

formation which would enlighten the jury as to the

acts of petitioner.

The evidence revealed absolutely no connec-

tion between petitioner and the defendant Cason

(record does not show that they even knew each

other), and therefore there was no basis for join-

ing Cason and Peabody in the trial since they are

not alleged to have participated in any type of

common activity, except as to Count 21 for which

petitioner received a new trial.

The judge's duty to sever continues at every

stage of the trial. Thus, in Schaeffer v. United

States, 362 U.S. 511, 4 L.Ed2d 921, 80 S.Ct. 945,

this Court stated that: "The trial judge has a

continuing duty at all stages of the trial to

grant a severance if prejudice does appear."

362 U.S. at 516.

When it appeared to the trial Court that the

defendant Cason had 2" legedly been the recipient

of $500.00 from witness Kammermeyer for distri-

bution to petitioner and Tharp, and where de-

fendant Cason had indicated to his counsel and to

counsel for pecitioner his willingness to file an

affidavit to the effect that he had not received

any such payment from witness Kammermeyer and

aZ hw

had not given any such money to petitioner, then

it appears that a severance should have been grant-

ed so as to give petitioner an opportunity to call

the defendant Cason to the stand.

This problem is the type of situation which

arose in United States v. Echeles, 352 F.2d 892

(7th Cir. 1965), where a defendant advised the

Court that his lawyer had not suggested that false

testimony be given but yet the lawyer was indicted

and tried for such charge along with said defen-

dant. The Court held that in such circumstance

a severance should have been proper even though

the witness may not have actually testified at

the trial. The Court stated: "Thus, Echeles

could not properly call Arrington as a witness

during Echeles' case in chief. For if Arrington

declined to take the stand, as was his right

Echeles' action in calling him and forcing him to

decline to do so in front of the jury would have

injected prejudicial error into the record as to

Arrington. In De Luna v. United States, 308 F.2d

140, 141, 1 A.L.R. 2d 969 (5th Cir. 1962), where-

in it was held that the defendant has the consti-

tutionally guaranteed right of silence free from

prejudicial comments, even when they came only

from co-defendant's attorney, the Court said in

language applicable here: 'I#? an attorney's duty

to his client should require him to draw the jury's

attention to the possible inference of guilt from

a co-defendant's silence, the trial judge's duty

~ to order that the defendants be tried separate-

y.

"The Government further contends that Echeles'

position in support of his motion for severance

necessarily involved indulgence in two specula-

tive assumptions: First, that Arrington would be

tried prior to Echeles, and secondly, that

Arrington would not claim his Fifth Amendment

privilege against self-incrimination if called as

a witness in the trial of Echeles. As for the

first such ‘assumption’, we do not feel it would

have been egregious had the trial judge, after

-22-

granting the motion for separate trial, also di-

rected the Government to proceed first with the

case against Arrington.

"With regard to the question of whether or

not Arrington would claim the privilege if he

were called as a witness during the trail of

Echeles alone - a trial held subsequent to his

own - we can only say that such question was not

properly the Government's to interpose. Specula-

tion about what Arrington might do at a later

Echeles trial undoubtedly would be a matter of

some concern to Echeles, but he should not be

foreclosed of the possibility that Arrington would

testify in his behalf merely because that eventual-

ity was not a certainty. ... Moreover, it would in

fact seem more likely than not that Arrington

would have testified for Echeles for the reason

that three times previously, in open Court, Arring-

ton had voluntarily exculpated Echeles, apparently

contrary to his own penal interest."

Here, as in Echeles, it is clear that there

developed at the trial testimony concerning an

allged payment by witness Kammermeyer which was

to be delivered to petitioner. This was very

prejudicial to petitioner in two respects, first-

ly, it came as a surprise to him, and secondly, he

was not present when the alleged payment was made

and was hearsay as to him. The hearsay character

of the testimony arose from the fact that Cason

allegedly told Kammermeyer that his reputation

was bad and that he needed to make the payment.

One could hardly suggest that if Cason had

made such a suggestion and not given the money

to petitioner then he would have done so for his

own benefit and therefore in a position antagon-

istic to petitioner. Im such circumstances it

would still be improper for petitioner and Cason

to stand trial together.

In United States v. Shuford, 454 F.2d. 772

(4th Cir. 1971), one defendant when tried with

another refused to take the stand for reasons

of his own but had indicated a willingness to

-23-

testify on behalf of the other defendant should

the trial be severed. The Court denied the motion

for severance and the Court of Appeals reversed

citing Echeles. The Court stated: "At the trial,

Jordan's testimony was sought by Shuford in re-

gard to a crucial fact on which the Government

and Shuford were in sharp disagreement, namely the

precise nature of Shuford's instructions to Long

regarding billing practices. Shuford testified

that he advised Long that the laboratory could

bill patients for missing appointments, but he

added the admonition that these items should be

handled in a manner as not to appear in later liti-

gation or settlement negotiations. Long, in con-

trast, testified to a version that was significant-

ly different. He strongly suggested that Shuford

was intending to use the misleading bills to en-

hance his clients' recoveries.

"Thus, the situation presented to the jury

was that if they credited Long, then they could

find that Shuford intended to falsify the thera-

py bills submitted to the Government. On the other

hand, if they believe Shuford, they could see him

as an innocent victime of long failure to follow

instructions. Plainly, the guilt or innocence of

Shuford hinged, in large measure, on the outcome

of this credibility dispute.

"No other witness testified regarding Shu-

ford's instructions to Long. Indeed the only other

potential witness with direct knéwledge of this

phase of the case was Jordan who, in the absence

of a severance, declined to take the stand. And

the Fifth Amendment gave Jordan the right not even

to be called to the stand so long as he was a

defendant. ... This right extends so far as to

forbid not only the Government, but even Shuford

from calling Jordan to the stand. ... However, if

Jordan's case were severed, while he would retain

the privilege against self-incrimination, as a

witness, he would no longer have the right not to

be called to the stand. . .. Thus, absent Jordan's

willingness to waive his Fifth Amendment right while

-24-

joined as a defendant with Shuford, severance

was the only way of affording Shuford any possi-

bility of persuading Jordan to testify."

Therefore, as in the instant case Cason chose

to stand on his Fifth Amendment right to not testi-

fy at the trial and it would have been gross

prejudicial for petitioner to call him to testify.

However, Cason's testimony was essential because

Peabody not only was surprised at the claim that

he was given $250.00 prior to becoming a Member

of the Board of Education by a man that he had

never met or seen before, but vigorously denied

such claim with the support of Cason. It appears,

therefore, that the Shuford and Echeles doctrines

were abandoned by the Seventh Circuit in its Order

for which the petitioner is seeking review.

Had the Government not opposed petitioner's

motion for severance and/or motion for continuance

with respect to the alleged gifts from Kammer-

meyer to Cason, then petitioner would have been

in a position to at least attempt to combat the

testimony of Kammermeyer concerning the $569.00,

which testimony even to the trial Court was of a

very dubious nature.

Thus, even if this Court were to rule that the

initial joinder of the defendants and issues were

proper, it appears that because of the surprise

testimony both to petitioner and to the Govern-

ment, a severance should have been granted upon

such testimony in line with the continuing duty

to grant a severance when the interest of justice

so requires in accordance with Schaeffer cited

above.

The basic issue involved the claim by pe-

titioner that the trial Court should have either

dismissed both counts against him, or granted him

a new trial as to both counts since the "surprise

evidence" was not related to Count 11 (the con-

spiracy count) until after the jury had returned

its verdict, and postrial motion and affidavits

had been filed.

In arguing that the so-called "gifts" of the

~25-

calculator and tape recorder, the alleged "gift"

of $250.00 to Cason for petitioner prior to the

time petitioner had ever met Kammermeyer, and the

alleged "gift" of golf clubs, constituted "over

acts" and were therefore admissible under Count

ll, the Government failed to take into account

that during the trial, these matters were not

alleged as "overt acts," but rather as substantive

offenses under Count 21, and testimony regarding

these items were only admissible under Count 21.

In other words, had Count 21 been dismissed such

testimony would never have been admitted.

The trial Court accepted the argument that

the surprise evidence constituted overt acts in

connection with the alleged conspiracy. Had

petitioner known during the trial that this evi-

dence was for purposes of showing overt acts in

connection with the alleged conspiracy, he could

have at least met the issue head on. However,

as stated previously, the "overt acts" concept

as it relates to this surprise evidence did not

find fruition until it became reasonably clear

that the use of this evidence in connection with

Count 21 would be fatal.

Petitioner urges that this Court grant him an

opportunity to confront his accuser whether or not

such surprise evidence is regarded as substantive

evidence or "overt acts."

CONCLUSION

The basic notion of an accused receiving a

fair trial is so fundamental in our system of

jurisprudence that it hardly needs reiterating.

For the reasons set forth above, petitioner strong-

ly believes that he was denied a trial of accept-

able quality and therefore believes that his trial

was unfair.

In knowing the precise accusations ogainst

him, the introduction of surprise testimony not

known to either petitioner or the Government, not

being able to refute certain evidence (alleged

-26-

gift of $250.00) because a line in that evidence

was a co-defendant who could not be called to the

stand by anyone, acts alleged as substantive

offenses during the trial becoming over acts _

after the trial, and a broad brush being applied

to all defendants are among the reasons why

petitioner believes that as a matter of law the

trial against him in this cause was unfair.

Therefore, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

ros ; |

cdUaey Mik

Edward L. Welch |

~>™

APPENDIX

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF ILLINOIS

UNITED STATES OF AMERICA,

Plaintiff,

CRIMINAL NO.

74-97-E

vs.

)

)

)

)

CHARLES MERRITTS, SR., )

RAYMOND CASON, )

LEONARD JOHNSON, )

DR. FRED KIMBROUGH, )

ROOSEVELT PEABODY, )

HARRY THARP, et. al., )

)

)

E

Defendants.

R

Now before the Court is defendant Roosevelt

Peabody's Post-Trial Motion in which the defendant

requests a new trial.

In Count XXI, Peabody was convicted of conduct-

ing and participating in the affairs of the School

Board, District 189, through a pattern of racket-

eering act _vity. This pattern of racketeering

activity included at least two acts of racketeering

activity. One of the acts of racketeering activity

clearly was the conspiracy alleged in Count XI. It

is far less clear what constituted the other act of

racketeering activity. At the trial, Government

adduced proof which tended to show that Peabody had

either received or attempted to receive a washer

and dryer, a $500 payment made to Raymond Cason to

be divided among Peabody and Tharp, golf clubs, and

a calculator. The Government ‘concedes that it was

unaware of the $500 payment, the golf clubs, and

the calculator prior to the time James W. Kammer-

meyer testified at time of trial. In addition, the

closing argument of the Assistant United States

Attorney discussed both the washer and dryer and

the calculator.

=-28-

Peabody claims that iic cannot be convicted on

the basis of charges chat are not included in the

indictment and that there was a fatal variance

between the charge contained in the indictment and

the proof adduced at trial. A variance between

indictment and proof is immaterial unless the sub-

stantial rights of the accused have been prejudiced.

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

v. Seby, 416 F.2d 514 (9th Cir. 1969); Gay v.

United States, 408 F.2d 923 (8th Cir. 1969), cert.

denied 396 U.S. 923; Robinson v. United States,

333 F.2d 950 (Sth Cir. 1964), cert. denied 379 U.S.

921. A variance between an indictment and the

evidence is not material unless it is of such a sub-

stantive character as to mislead the accused in

preparing his defense or place him in second

jeopardy for the same offense. United States v.

Pile, 256 F.2d 954 (7th Cir. 1958); United States

v. Rosenblum, 176 F.2d 321 (7th Cir. 1949).

Whether a variance is preiudicial must be deter-

mined on the facts of each case. United States v.

Russano, 257 F.2d 712 (2d Cir. 1958).

Counsel for defendant Peabody reiterated

throughout the trial his surprise as the evidence

disclosed certain other instances of misconduct on

the part of Peabody. Counsel for defendant Pea-

body seems to acknowledge that he knew of the

allegations of the washer and dryer prior to the

time of trial, but that he was unaware of the golf

clubs, the $500 payment and particularly the calcu-

lator.

The Court feels that the introduction of

evidence of other acts of misconduct on the part of

Peabody constituted a fatal variance as to Count

XXI and that Peabody was truly surprised thereby.

For these reasons, defendant Peabody's Motion for a

New Trial is hereby GRANTED as to Count XXI.

Count XI stands in a different posture. In

essence, that Count alleged that Peabody conspired

to obtain property under color of official right in

violation of 18 U.S.C. §1951. Several overt acts

were alleged. Peabody contends that there was a

fatal variance as to this conspiracy count because

-29-

evidence of overt acts not named in the indictment

was admitted at the trial. A conspiracy conviction,

however, may be sustained upon a showing of overt

acts in furtherance of the conspiracy even if the

overt acts were not alleged in the indictment.

United States v. Fassoulis, 445 F.2d 13 (5th Cir.

1971); United States v. Armone, 363 F.2d 385, 400

(2d Cir. 1966), cert denied 385 U.S. 957; Napolitano

v. United States, 340 F.2d 313, 314 (lst Cir. 1965);

Culp v. United States, 131 F.2d 93, 100 (8th Cir.

1942). Moreover, there was sufficient evidence to

warrant the jury's finding based upon certain overt

acts which were named in the indictment. Therefore,

a new trial as to Count XI is not warranted.

Therefore, the Court hereby orders that the

defendant Peabody be granted a new trial as to

Count XXI only.

DATED: _Aug. 13, 1975. .

(s) James L. Foreman

UNITED STATES DISTRICT JUDGE

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicego, Illinois 60604

Argued February 22, 1977

April 15, 1977

UNPUBLISHED ORDER

NOT TO BE CITED

PER CIRCUIT RULE 35

Before

Hon. LUTHER M. SWYGERT, Circuit Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. A. SHERMAN CHRISTENSEN, Senior District

Judge*

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

) Appeals from the

) United States Dist-

Vv. ) rict Court for the

Nos. 75-1677 through ) Eastern District of

75-1681, and 76-1761 ) Illinois.

RAYMOND CASON, LEONARD )

JOHNSON, DR. FRED KIMBROUGH, ) %°- 74-CR-97-E

ROOSEVELT PEABODY, HARRY ) James L. Foreman,

THARP, and BEN PHILLIPS, JR.,) Judge,

Defendants-Appellants. )

These appeals are from jury verdicts of con-

viction of the defendants for participation in a

kickback conspiracy involving the Board of Educa-

tion of East St. Louis, Illinois. Defendant Ben

Phillips, .JIr., whose trial was severed from that of

the others, was charged with violation of 18 U.S.C.

§§ 1951 and 1952. The other defendants were charged,

*The Honorable A. Sherman Christensen, United States

Senior District Judge for the District of Utah at

Salt Lake City, is sitting by designation.

=-3-

—

Petes ee

in a twenty-one count indictment, with various vio-

lations of 18 U.S.C. §§ 2, 1341, 1623, 1951, 1961,

1962, and 1963. Defendants Charles Merritts, Sr.,

Harry Tharp, Dr. Fred Kimbrough, and Roosevelt Pea-

body were members of the school board. Defendants

Leonard Johnson and Raymon Cason were, respectively,

the business manager and the purchasing agent for

the East St. Louis School Board. Phillips was

allagedly employed by one of the vendors involved

for the purpose of “laundering” money paid to

Merritts.

The Government's chief witnesses were James W.

Kammermeyer and Marvin C. Schwartz, vendors doing

business with School District No. 189. Both wit-

nesses were granted immunity from prosecution in

exchange for their testimony. Kammermeyer and

Schwartz both testified to the existence of the

kickback scheme, and to numerous meetings with the

defendants to discuss arrangements. Involved in

the operation of the scheme were the use of ficti-

tious invoices, fictitious purchase orders, and

numerous payoffs by the vendors, in goods as well

as money, some of the latter being laundered through

Phillips.

The defendants have argued many points as error,

and we will address each in turn. We do not, how-

ever, find any of their arguments to be of merit.

Defendant Phillips was charged with aiding and

abetting Merrits in obtaining property from a vendor,

with the vendor's consent, induced under color of

official right which affected commerce, in violation

of 18 U.S.C. § 1957 and § 1952, between June 1973

and December 1973. At Phillips’ separate trial

Kammermeyer testified that Phillips was employed to

serve as payee of Kemmermeyer's checks for money

paid to Merritts. Phillips would cash the checks

and deliver the money to Merritts. Kammermeyer set

up a tax escrow account fer Phillips of roughly

thirty percent of these amounts. Phillips’ first

objection is to the receipt of Kammermeyer's record

book into evidence under the business records ex-

ception to the hearsay rule. The book contained

records of kickback payments and the tax escrow.

=§Q~

Phillips claims that it was improperly admitted be-

cause it was not made as a regular part of Kammer-

meyer's business. This contention is without merit.

Kammermeyer testified that he was the custodian of

the book and that the entries were made by him or at

his direction. He further testified that making

kickbacks was not only a part of his business, but

a very high percentage of that business. The situa-

tion is clearly included in both the Federal Busin-

ess Records Act, 28 U.S.C. § 1732(a), and Federal

Rule of Evidence 803(6); its reliability was thus

established.

Phillips next claims that an effect upon

commerce was not sufficiently proved. Kammermeyer's

testimony that he made purchases from suppliers in

states other than Illinois and Missouri and assign-

ed his "Accounts Receivable" outside these states

is sufficient to satisfy the commerce element of the

Hobbs Act. In Stirone v. United States, 361 U.S.

212 (1960), the Supreme Court stated that the broad

language of the Hobbs Act “manifest[s] a purpose to

use all the constitutional power Congress has to

punish interference with interstate commerce by

extortion... ." 361 U.S. at 215. This court has

further held that the commerce element is satisfied

where there exists a "realistic probability that an

extortionate transaction will have some effect on

interstate commerce," even though the record shows

no actual effect. United States v. Staszcuk, 517

F.2d 53, 60 (7th Cir. 1975). Im the instant case,

there was sufficient evidence to support the com-

merce element of the charge.

In his final argument Phillips contends

that the district court erred in reopening the pros-

ecution's case in rebuttal for newly discovered

evidence. He contends that this evidence had been

in the Government's possession and, in fact, used

as an exhibit in a previous trial. This assertion

is completely unsupported by the facts. We find no

abuse of discretion in the court's permitting the

Government to reopen rebuttal.

Merritts, tried with the other defendants, is

not a party to this appeal. Various defenses were

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raised by some or all the defendants in the second

case. We will address each separately.

Defendants contend that an agent of the Federal

Bureau of Investigation was improperly present in

the grant jury room during its consideration of this

case, for the purpose of rendering technical assist-

ance to the grand jury. It has not been asserted

that the agent was present during the grand jury's

deliberation or voting on the indictment. Moreover,

this claim is totally unsupported, as no evidence

has been submitted by defendants to indicate his

presence.

We find the challenge to the trial jury's array,

that there was a too-high percentage of women, to be

similarly without merit. The district court held an

evidentiary hearing on this issue and found no prima

facie showing of wrongdoing. There was no showing

of knowing and intentional exclusion of any jurer

based upon race, sex, age, or other factor.

Defendants argue that because the evidence in

this case was so lengthy and complicated, and because

there were so many defendants involved, their trials

should have been severed. The trial court carefully

cautioned the jury each time testimony was received

for merely a limited purpose or against only cert-

ain defendants, and carefully instructed the jury

before it retired. This trial was a long one --

two weeks. If severance had been granted, it would

necessitate six separate complicated trials with

duplicitous testimony. Severance is a matter-with-

in the sound discretion of the trial court; under

these circumstances we cannot conclude that the

district court abused this discretion.

The evidence presented by the prosecution was

sufficient to establish, independent of hearsay

declarations by any of the defendants, a continuous

scheme of extortion to which all the defendants were

joint venturers. Once such a joint venture has been

established, hearsay declarations made in further-

ance of the scheme by any member are admissible

against another member. United States v. Buschman,

527 F.2d 1082 (7th Cir. 1976). Such hearsay

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declarations were, thus, properly admitted into ev-

idence. Defendants contend that there existed, if

any, only multiple conspiracies rather than the one

single conspiracy charged. As previously indicated,

the evidence sufficiently showed one single scheme

to extort kickbacks from the vendors. Moreover,

there was sufficient evidence to prove that those

defendants charged with conspiracy to extort,

Merritts, Kimbrough, Peabody, and Tharp, did so con-

spire. The evidence shows that in May 1974 three of

the four met at Kammermeyer's office, the fourth

being called on the telephone, to discuss the manner

in which to carry out the conspiracy. During this

meeting all four either demanded payment from

Kammermeyer, or gave instructions for him to follow

in furtherance of the conspiracy. This evidence

shows that all knew of and actively joined the con-

spiracy. It is well settled that the parties to a

conspiracy may change; one can leave a conspiracy

or join an ongoing one. This does not mean that

there are separate conspiracies. United States v.

Varelli, 407 F.2d 735 (7th Cir. 1969). Thus the

contentions of Peabody and Tharp, who did not become

school board members until April 1974, after the

initial dates charged in the indictment, that they

cannot be charged with that conspiracy are without

merit.

Defendants argue that they were prejudiced by

references in the Government's opening statement

that it would prove its case through tape recordings

of the defendants. These tapes, made by bugging one

of the testifying vendors during meetings with de-

fendants, were never offered by the Government for

admission. The Government claims that this was due

to their poor sound quality, the necessity for com-

plicated editing, and resulting problems of estab-

lishing a foundation. Considering the trial court's

instructions to the jury, remarks by the Government

attorney that statements by counsel are not evid-

ence, and the rest of the evidence adduced, we can-

not say that these references were manifestly pre-

judicial to the defendants. Frazier v. Cupp, 394

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U.S. 731, 736 (1969); United States v. Woodring,

446 F.2d 733, 737 (10th Cir. 1971).

These same tapes were offered into evidence by

defendant Kimbrough as cross-examination of Kammer-

meyer. Several of his codefendants objected to

their admissibility on grounds of prejudict to then,

Kimbrough's lack of standing to move for their ad-

mission, and lack of proper foundation. The Govern-

ment also objected to their use for reasons that

they were beyond the scope of direct examination of

Kammermeyer, that they were of poor sound quality,

and that they did not include all relevant time

periods. We find that the trial court did not abuse

its discretion to limit the scope of cross-examina-

tion in collateral matters. United States v. Bender,

218 F.2d 869, 873-74 (7th Cir. 1955), cert. denied,

349 U.S. 920 (1955); United States v. Lehman, 468

F.2d 93 (7th Cir. 1972), cert. denied, 409 U.S. 967

(1972); Umited States v. Hanahan, 442 F.2d 649,

655 (7th Cir. 1971).

These tapes, which were marked exhibits but

never introduced as evidence, were labeled with

various defendant's names. They were inadvertently

taken with the jury during its deliberations. Def-

endants claim that they were prejudiced by this

incident. The jury, however, never heard the tapes.

Within fifteen minutes after the jury retired, a

note from the forelady was delivered to the judge

asking whether the tapes had been admitted and for

an explanation why the jury had not heard them.

They were almost immediately recovered. Defendant's

objections are directed to the fact that the jury

saw their names on the tapes; it never heard the

tapes. Although delivery to the jury of an exhibit,

not admitted into evidence is regrettable and con-

stitutes error, it only requires reversal if there

is a possibility that the error was prejudicial.

United States v. Grady, 185 F.2d 273 (7th Cir. 1950);

Osborne v. United States, 351 F.2d 111 (8th Cir.

1965). The nature of these exhibits, tape record-

ings, weighs heavily against the possibility of

their causing prejudice. Unlike other types of

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exhibits, their contents are not susceptible to ob-

servation without a device with which to play them

back. Because the jury only had them a very short

time, and because they never hear them, we cannot

Say that it was “substantially swayed by the error."

Kotteakos v. United States, 328 U.S. 750, 765 (1946).

Defendant Cason claims prejudicial error occur-

red when he was misidentified by a witness brought

by the prosecution to impeach the testimony of

Johnson. The purpose to be served by the witness

was to identify Johnson as the man to whom Kammer-

meyer instructed him to give a set of golf clubs.

Instead, when he made the courtroom identification,

the witness pointed to Cason, who did not testify

at the trial. Cason claims that this violated his

right to choose whether or not to testify, and that

he was not given an opportunity to cross-examine

the witness. In view of what occurred following the

incident, we do not find that sufficient prejudice

resulted to require a mistrial. After the misident-

ification, the witness was immediately excused, his

testimony stricken, and the jury admonished to

entirely disregard it. The defense did not then

attempt to cross-examine the witness.

All defendants argue that there was insufficient

evidence to support their convictions. We find, how-

ever, that the evidence adduced does not support this

claim, and was sufficient to support the jury's ver-

dict. It is not the function of this court to weigh

the credibility of the witnesses’ testimony; that

is the function of the jury.

In Count XXI defendants were charged with vio-

lations of 18 U.S.C. §§ 2, 1961, 1962, and 1963,

prohibiting conduct involving a pattern of racket-

eering activity. This count incorporated by refer-

ence some of the other counts of particular instances

of racketeering. Because some of the evidence

adduced at trial involved conduct not specifically

charged in the other counts, defendants argue that

there was a variance of proof from the indictment.

The policy behind not permitting proof to vary

from what is charged in the indictment is twofold:

~~ =

to protect against the possibility of double jeop-

ardy and to enable the defendant to adequately pre-

pare a defense. In looking to the facts of this

case, it can be seen that this policy has been served.

There is no danger that defendants will be tried

again for these charges, as the indictment was suf-

ficiently specific as to the time period and alleged

violations. Defendants were able to adequately pre-

pare their defense. They had the opportunity for

ample discovery, and the kickback payments proved at

trial were violations of 18 U.S.C. §§ 1951 and 1961

charges existing throughout the indictment. Sections

1961, 1962, and 1963 involve a "pattern" of racket-

eering conduct. The Government is not prohibited

from proving overt acts, other than those charged in

the indictment, to show this pattern of activity.

The judgments in these appeals are affirmed.

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