Petition — Duhon v. United States

MAR 1 1978

| MICHAEL RODAK, ., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

No 77-1216

HARLAN DUHON and DONALD RAY LOVETT,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

On Application for a Writ of Certiorari to the

United States Court of Appeals

ior the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

McPHERSON, WEBER & ZAINEY

JAMES A. McPHERSON

Attorney for Petitioners

419 Carondelet Street

New Orleans, Louisiana

Telephone: (504) 581-1975

DREWETT & JACQUES

J. CLEM DREWETT

Attorney for Petitioners 5

625 Kirby Street

Lake Charles, Louisiana 70601

Telephone: (308) 433-4674

SCOFIELDS’ QUALITY PRINTERS. P. o. BOX 63096. N. O. LA. 70163 - 604/822-1611

TABLE OF CONTENTS

Page

INDEX OF AUTHORTITIEEL Eee. i

JJ dhcedddnciasvcesddcdcececceoces 2

GROUNDS ON WHICH SUPERVISORY

JURISDICTION OF THIS COURT IS IN-

La) UNDP PYETYTTOTYTT IIIT TL Lee ETL ETL ITE eee 2

THE QUESTIONS PRESENTED FOR REVIEW. 3

CONSTITUTIONAL, STATUTORY AND

FEDERAL RULES PROVISIONS IN-

r Raeaweded aWeceresaGs ccabeesscceges 5

STATEMENT OF THE CASE EmE ti 9

REASONS FOR GRANTING THE WRIT ......... 18

r ³ĩx́ĩ?tßy5r een 30

CERTIFICATE OF SERVICE EEEggggee . 31

APPENDIX

r eee d ee 1a

// 20a

PETITION FOR REHEARING DENIED ...... 21a

ISSUANCE OF MANDATE ORDER ........... 22a

INDEX OF AUTHORITIES

Cases:

Callanan v. United States, 223 F.2d 171-176 (8

SE ott initia Cod ee edie ea bee necse 18

Michelson v. United States, 335 U.S. 469 (1948)... 25,27

United States v. Battaglia, 394 F.2d 304, 313 (7

r AA nde 18.19

ii

INDEX OF AUTHORITIES (Continued)

United States v. Broadway,477F.2d991(5Cir. Page

e wasneeeen e 20

United States v. Glasser, 443 F. 2d 994 (2 Cir.

„e 18.19

United States v. Hyde, 448 F. 2d 815, 845-846 (5

D A ² 18.20

United States v. Lewis, 157 U.S. App. D.C. 43.

r K 25.27.28. 29

United States v. Stirone, 311 F.2d 277 (3 Cir.

„ . doves sndantcccdne 18

Constitutional & Statutory Provisions:

United States Constitution — Sixth Amend-

BED 6 vn 6cee cbs dee tee e cpectcckékeceesscuudies 4

Federal Rules of Evidence

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A h 6

PE GOD icccvccsccudsestvecdtonvees bademekeenaine 6

.. en e eee ote 7

r.. eien 7

. ee e eee 7

eee s Gee eee 8

r e 9

, . e 22

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18 U.S.C. 88281·.¹ĩʒi:: . nennenenenes 9

. . ey Se 3 3

IN THE ‘

SUPREME COURT OF THE UNITED STATE

OCTOBER TERM, 1977

No.

HARLAN DUHON and DONALD RAY LOVETT,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

On Application for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE, THE CHIEF JUSTICE OF

THE UNITED STATES AND THE ASSOCIATE

JUSTICES OF THE SUPREME COURT:

The petitioners, Harlan Duhon and Donald Ray

Lovett, through their undersigned counsel, respect-

fully petition this Honorable Court for a writ of cer-

tiorari to review the opinion and judgment of the Unit-

ed States Court of Appeals for the Fifth Circuit, ren-

dered on January 3, 1978, in case number 76-3998 on the

Docket of the Fifth Circuit Court of Appeals.

2

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit, as yet unreported, is annexed

hereto and marked Appendix A. The said opinion com-

mences on page 1300 of the Slip Opinions of the

current term of the United States Court of Appeals for

the Fifth Circuit.

There are no written decisions of the United States

District Court for the Western District of Louisiana

which relate to the issues presented by this petition.

GROUNDS ON WHICH SUPERVISORY

JURISDICTION OF THIS

COURT IS INVOKED

The judgment herein sought to be reviewed was

made andentered on January 3, 1978. A copy of the said

judgment is annexed as Appendix B to this petition.

A timely petition for rehearing was denied on

January 30, 1978. A copy of that Order is annexed as

Appendix C.

The United States Court of Appeals for the Fifth Cir-

cuit stayed the issuance of the mandate in these

proceedings pending the timely filing of this petition

for a writ of certiorari on or before March 1, 1978, pur-

suant to Fifth Circuit Local Rule 15 and Rule 41(b),

F.R.A.P. The said stay is to remain in effect until this

Honorable Court disposes of this case, pursuant to the

provisions of Rule 41(b), F.R.A.P. A copy of that Order

is annexed as Appendix D.

28 U.S.C. §1254(1) confers jurisdiction upon this

Honorable Court to review the judgment below upon a

writ of certiorari.

THE QUESTIONS PRESENTED

FOR REVIEW

1. Whether prejudicial error occurred when the

Trial Court, over the timely objection of the

petitioners, admitted evidence of a prior labor dispute

between the alleged victim and different labor leaders

which occurred more than ten years prior to the

episode alleged in the indictment in this case, when

there had been no demand for money in the prior labor

dispute, in contradistinction to the allegations made

herein, and the prior labor incident involved property

damage to some extent and there was no threat or

attempt to do more than peacefully picket the alleged

victim in this instance?

2. Whether the defendants were denied an effective

right of confrontation and cross-examination of the

Government’s principal witness, Mr. Buckholtz, when

the Trial Court refused to allow the defense to question

Mr. Buckholtz on the basis of his statements made to

FBI Agent and disclosed to the defense as Jencks Act

statements, on the ground that such statements were

not signed or otherwise adopted by the said witness

and constituted hearsay.

4

3. Whether the Trial Court improperly denied

petitioners an effective exercise of their right of con-

frontation and cross-examination when, after the said

witness had been shown to have made several

statements before the grand jury which contradicted

his testimony before the petit jury on the trial of this

case, the prosecution asked the witness for the first

time about a hearing problem he had at the time of his

testimony before the grand jury and the Trial Court re-

fused to permit recross-examination of the witness on

this new matter which was designed to rehabilitate the

Government’s principal witness.

4. Whether prejudicial error occurred in the clos-

ing argument of the prosecutor, on rebuttal, when the

prosecutor argued “You know, we wonder why no one

will come forward as a witness. There is the reason.

You think he won't pay a price [referring to the alleged

victim]? Wait until his next construction in DeRidder.

You think he hasn't paid a price? He is a witness, a

man who got money taken from him and he is called a

thief. * * *,” which argument was designed to appeal to

the jurors’ civic duty to protect future witnesses

against attacks on their character by defendants.

5. Whether the Trial Court’s ruling, that the

Government would be permitted to cross-examine

defense character witnesses regarding petitioners

Duhon's arrest and indictment on an independent

charge arising subsequent to the events alleged in the

present case, was erroneous and improperly deterred

petitioners from presenting character evidence.

CONSTITUTIONAL, STATUTORY AND

FEDERAL RULES PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides in relevant part:

In all criminal prosecutions, the accused

shall enjoy the right to a trial“ * by an

impartial jury * *; to be confronted with the

witnesses against him

The Federal Rules of Evidence, Rules 401 through

406, provide in relevant part:

Rule 401. Definition of “Relevant Evidence

“Relevant evidence” means evidence hav-

ing any tendc.ucy to make the existence of any

fact that is of consequence to the determina-

tion of the action more probable or less prob-

able than it would be without the evidence.

Pub.L. 93-595, §1, Jan. 2, 1975, 88 Stat. 1931.

Rule 402. Relevant Evidence Generally Ad-

missible; Irrelevant Evidence In-

admissible.

All relevant evidence is admissible, except

as otherwise provided by the Constitution of

the United States, by Act of Congress, by these

rules, or by other rules prescribed by the

Supreme Court pursuant to statutory authori-

ty. Evidence which is not relevant is not ad-

missible. Pub. L. 93-595, §1, Jan. 2, 1975, 88 Stat.

1931.

Rule 403. Exclusion of Relevant Evidence on

Grounds of Prejudice, Confusion,

or Waste of Time.

Although relevant, evidence may be exclud-

ed if its probative value is substantially out-

weighed by the danger of unfair prejudice,

confusion of the issues, or misleading the

jury, or by considerations of undue delay,

waste of time, or needless presentation of

cumulative evidence. Pub.L. 93-595, §1, Jan. 2,

1975, 88 Stat. 1932.

Rule 404. Character Evidence Not Admissi-

ble to Prove Conduct; Exceptions;

other Crimes.

(a) Character evidence generally.

Evidence of a person’s character or a trait of

his character is not admissible for the purpose

of proving that he acted in conformity

therewith on a particular occasion, except:

(1) Character of accused. Evidence of a

pertinent trait of his character offered by

an accused, or by the prosecution to rebut

the same;

(b) Other crimes, wrongs, acts. Evidence of

other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to

show that he acted in conformity therewith. It

may, however, be admissible for other pur-

poses, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity,

7

or absence of mistake or accident. Pub. L. 93-

595, §1, Jan. 2, 1975, 88 Stat. 1932.

Rule 405. Methods of Proving Character.

(a) Reputation or opinion. In all cases in

which evidence of character or a trait of char-

acter of a person is admissible, proof may be

made by testimony as to reputation or by

testimony in the form of an opinion. On cross

examination, inquiry is allowable into rele-

vant specific instances of conduct.

(b) Specific instances of conduct. In cases

in which character or a trait of character of a

person is an essential element of a charge,

claim, or defense, proof may also be made of

specific instances of his conduct. Pub.L. 93-

595, §1, Jan. 2, 1975, 88 Stat. 1932. |

Rule 406. Habit, Routine Practice.

Evidence of the habit of a person or of the

routine practice of an organization, whether

corroborated or not and regardless of the pres-

ence of eyewitnesses, is relevant to prove that

the conduct of the person or organization on a

particular occasion was in conformity with

the habit or routine practice. Pub. L. 93-595, §1,

Jan. 2, 1975, 88 Stat. 1932.

Rule 611 of the Federal Rules of Evidence provides:

(a) Control of the court. The court shall

exercise reasonable control over the mode and

order of interrogating witnesses and present-

ing evidence so as to (1) make the interroga-

tion and presentation effective for the ascer-

tainment of the truth, (2) avoid needless con-

sumption of time, and (3) protect witnesses

from harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-

examination should be limited to the subject

matter of the direct examination and matters

affecting the credibility of the witness. The

court may, in the exercise of discretion, permit

inquiry into additional matters as if on direct

examination.

**** Pub. L. 930595, §1, Jan. 2, 1975, 88 Stat.

1936.

Rule 613 of the Federal Rules of Evidence provides:

(a) Examining witness concerning prior

statements. In examining a witness con-

cerning a prior statement made by him,

whether written or not, the statement need not

be shown nor its contents disclosed to him at

that time, but on request the same shall be

shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsis-

tent statement of witness. Extrinsic evidence

of a prior inconsistent statement by a witness

is not admissible unless the witness is af-

forded an opportunity to explain or deny the

same and the opposite party is afforded an

opportunity to interrogate him thereon, or the

interests of justice otherwise require. This

provision does not apply to admissions of a

9 ¥

party-opponent as defined in rule 801(d)(2).

Pub.L. 93-595, §1, Jan. 2, 1975, 88 Stat. 1936.

Rule 801(d)(1) of the Federal Rules of Evidence

provides:

(d) Statements which are not hearsay. A

statement is not hearsay if —

(1) Prior statement by witness. The

declarant testifies at the trial or hearing

and is subject to cross-examination con-

cerning the statement, and the statement

is (A) inconsistent with his testimony, and

was given under oath subject to the penal-

ty of perjury at 4 trial, hearing, or other

proceeding, or in a deposition, or (B) con-

sistent with his testimony and is offered to

rebut an express or implied charge

against him of recent fabrication or im-

proper influence or motive * * *.

„ „ „„ Pub.. 93-595, §1, Jan. 2, 1975, 88

Stat. 1938.

STATEMENT OF THE CASE

This is a prosecution brought in the United States

District Court for the Western District of Louisiana

upon charges that petitioners violated 18 U.S.C. §1951,

The Hobbs Act, by allegedly extorting a contractor of

$5,000.00 in order to settle a fictitious labor dispute.

The said District Court had exclusive original juris-

diction of the subject matter and the petitioners pur-

suant to 18 U.S.C. §3231.

10

Mr. Eugene H. Buckholtz is a contractor doing busi-

ness in and about DeRidder, Louisiana, under the firm

name of Southwest Construction and Paving, Inc.

Southwest Constitution entered into a contract with

West Brothers, a chain of department stores, to erect a

prefabricated steel building which was to be used by

West Brothers as a warehouse for stock to be sold in its

stores. The said warehouse was to be erected on prop-

erty belonging to the City of DeRidder, Louisiana,

which had been designated by the town as an in-

dustrial park. Construction began on the warehouse

project on June 24, 1974.

Southwest Construction and Paving, Inc., is a non-

union company. Most of its business is done with the

paper mill near DeRidder, Louisiana, which will not

contract with union companies in order to avoid

strikes, etc., at that location.

On July 11, 1974, pickets were placed on the job site

by the Southwest Louisiana Building and Construc-

tion Trades Council, of which petitioner Lovett was

the Secretary-Treasurer and ex-officio Business

Manager. The local Assistant Business Manager of

the laborers’ union did not know why the picket line

was established when he was asked by Mr. Buckholtz.

Following an inquiry to petitioner Lovett, the local

laborers’ union representative set up a meeting

between Mr. Buckholtz, Mr. Brandt (the representa-

tive for West Brothers), and several Business Agents

for the various trades represented by the Southwest

Louisiana Building and Construction Trades Council.

Mr. Brandt invited a Mr. Stewart, an Assistant City At-

torney for the City of DeRidder, to attend because he

11

felt the city had some interest in the problem because

it owned the property upon which the West Brothers

warehouse was to be erected.

With the said attorney present, the labor leaders

were reluctant to discuss their demands and just

generally declared that the contractor had to “get

right” with the union. When pressed to state what was

necessary to end the picketing, petitioner Lovett de-

clared, “Mr. Buckholtz knows what it will take.” Mr.

Stewart then suggested that petitioner Lovett and Mr.

Buckholtz “take a walk and see if you all can’t get this

thing resolved.” Petitioner Lovett and Mr. Buckholtz

left the room and returned a short while later and an-

nounced that the dispute was settled. The pickets were

removed that afternoon and were not put up again. The

erection of the warehouse was completed without

further incident.

Mr. Buckholtz and Mr. Brandt left the meeting

together. Following the meeting, Mr. Brandt gave Mr.

Buckholtz a check in the amount of $5,000.00, osten-

sibly to reimburse Mr. Buckholtz for the expenditures

made in connection with the settlement of the labor

dispute. The discussion of a payoff originated between

Mr. Buckholtz and Mr. Brand, not between them and

anyone from the labor movement. Mr. Brandt asked

Mr. Buckholtz if $10,000.00 would be sufficient to solve

the problem. Mr. Buckholtz suggested that it could

possibly be done for $5,000.00. These conversations oc-

curred before the meeting at which the labor problem

was resolved. Mr. Buckholtz testified at the trial that

he asked petitioner Lovett, at their private session

during the July 16th meeting, if $5,000.00 would get the

12

pickets removed. Neither Lovett nor anyone else had

suggested a payoff. All of the union men who were

present at the meeting said Buckholtz would have to

“get right” with the union. That meant to sign a union

contract and employee union tradesmen on the job.

Significantly, Government Exhibit G-5 was a contract

with the Southwest Louisiana Building and Construc-

tion Trades Council in which Mr. Buckholtz agreed to

hire union employees in connection with the erection

of the West Brothers’ warehouse. Of further

significance, on the day following the meeting, Mr.

Buckholtz cashed the $5,000.00 check which Mr.

Brandt had given to him on the afternoon before, and

then obtained fifty $100 bills. Several days after cash-

ing that check, Mr. Buckholtz bought a camp, paying

$3,500.00 in cash and some $19,000.00 or so in checks

for it. His wife, who attended the Act of Sale, stated that

the cash involved mostly $100 bills. The source of this

case money, according to the testimony of Mr. Buck-

holtz, was from the excess of checks written at the

grocery store and from rental checks. It is extremely

doubtful that he wrote checks at the grocery store in

excess of $100 in order to have had $100.00 in change.

And even if he did, it is doubtful that the grocery store

gave him $100 bills in change, from which he com-

piled this cash of $100 bills used to supplement the two

checks given in payment for the fishing camp.

There was testimony about various telephone calls

which were made between Lovett and Buckholtz and

between Buckholtz and Brandt. The telephone bills for

Southwest Construction (G-6), West Brothers (G-13),

Southwest Louisiana Building and Construction

Trades Council (G-15), and the IBEW Local (G-16) were

13

admitted in evidence. The order in which the calls

were made cannot be established by the billings. The

testimony from Mr. Buckholtz was to the effect that

Lovett called him and asked him to meet in Lake

Charles for the payoff; Buckholtz called Brandt to in-

form him that the petitioners had called and requested

delivery of the payoff, but spoke to Mrs. Brandt who

told Mr. Buckholtz that Mr. Brandt was indisposed and

would return his call later that day. There is no men-

tion by Mr. Buckholtz of any conversation with

petitioner Duhon of the Electrical Workers Union. The

defense testimony was to the effect that Mr. Buckholtz

cailed Lovett, who was not there, and asked that Lovett

return the call. When Lovett returned the call, Mr.

Buckholtz asked him to get in touch with petitioner

Duhon and have him call Mr. Buckholtz. The

telephone bills do show that Mr. Buckholtz made a

direct-dialed telephone call to the Trades Council of-

fice (reflected by an AD billing code on Government

Exhibit G-6) after speaking with Mr. Brandt's wife in

Colorado. Lovett made a credit card call to Buckholtz

that day (reflected by a 3L billing code on G-15). And

Duhon made a credit card call to Buckholtz that same

day (reflected by a 3K billing code on G-16). There

would have been no reason for both Lovett and Duhon

to call Buckholtz to arrange for the alleged payoff. The

telephone records therefore support the defense’s ver-

sion that Buckholtz called Lovett to have him get in

touch with Duhon to have Duhon call Buckholtz — a

carefully contrived scheme to support Buckholtz’

story if he should ever be accused of keeping the

payoff money. It does not support Buckholtz’

testimony that he returned Lovett's call, because

Lovett obviously spoke to Buckholtz when he called

14

him because Lovett's call was made person-to-person

(reflected by the 3L billing code on G-15), which would

have been billed only if he reached Mr. Buckholtz per-

sonally.

We respectfully submit that a strong case was thus

made out that Buckholtz kept the money Brandt gave

him to make a payoff to petitioners and used that

money partly for the purpose of buying a fishing

camp. The testimony of Mr. Buckholtz supplied the

only direct evidence of a payoff. One extremely

significant factor, gleaned from the objective eviden-

tiary sources, is found in the testimony of the as-

sistant city attorney, Mr. Herman Steward, is that Mr.

Buckholtz looked as if he had been raked over the coals

when he returned to the meeting with the union repre-

sentatives. According to both Buckholtz and Brandt, it

was expected that they would have to make some sort

of payoff, and $5,000.00 was the least amount dis-

cussed by them. It is therefore logical to assume that

Bucknoltz’ expression and demeanor were not occa-

sioned by his having to make a payoff, especially

since West Brothers had agreed to provide the money

for this purpose. Obviously, Mr. Buckholtz expres-

sion and demeanor were occasioned by his having

done something he dreaded doing, namely signing the

union contract. (G-5).

During the cross-examination of Mr. Buckholtz, the

defense presented to him a statement which had been

attributed to him and which was inconsistent with his

testimony at the trial of this matter. Defense counsel

asked the witness if he made the statement to the FBI.

The witness testified, ‘I am sure I did, yes, sir.“ The

15

prosecution objected to the use of this prior con-

tradictory statement to impeach the testimony of the

Government's principal witness on the grounds that

the witness had never read, subscribed, adopted or

otherwise ratified the said statement. The defense of-

fered to question the witness in the following manner:

“what we should point out to the jury is that Mr.

Drewett has the document, you know, Mr. Witness, I

am not saying this is a statement that you wrote,

prepared or signed. We are trying to determine — let

the jury know that this is not — it differs from Grand

Jury testimony and a signed statement. We are trying

to determine if that is what he told the agent. (Tr. 206)

The Trial Court refused to allow the defense to use this

vital impeachment material to attack the only witness

who directly testified to the essential elements of the

offense charged. There was much more material in

that statement which was useful for impeachment

purposes than there was in the said witness’ grand

jury testimony. The defense was relegated to using the

transcribed verbatim testimony of the witness before

the grand jury in order to impeach him. Numerous in-

stances of inconsistent testimony were brought out on

cross-examination using this less substantial im-

peachment document. On rebuttal, the prosecutor

attempted to rehabilitate its key witness by asking

him, “Mr. Buckholtz, do you sometimes have difficul-

ty hearing the questions?” After an affirmative

response, the prosecution then emphasized the severi-

ty of Mr. Buckholtz’ hearing problem by obtaining an

affirmative response to the question: Vou are about

to go in surgery for an ear operation?” (Tr. 231) The

Trial Court refused to allow defense counsel to in-

terrogate the witness at all on this alleged hearing

16

problem, which was brought up for the first time on re-

direct examination.

In the closing argument to the jury, the prosecutor

made the rebuttal argument quoted in the formulation

of the fourth paragraph of The Questions Presented for

Review, ante. The appeal of this argument was de-

signed to make the jury believe it would do damage to

the entire future of criminal prosecution if it should

acquit the petitioners. The defense moved for a mis-

trial, which motion was denied by the Trial Court.

Two other rulings of the Trial Court form the basis

for the remaining issues of this petition. In one of

them, the Trial Court admitted testimony concerning a

problem Mr. Buckholtz had had with different labor

leaders ten years prior to the alleged offense. The

Government was sustained in its effort to present this

evidence on the ground that it was relevant to the state

of mind of the alleged victim. The previous episode in-

volved property damage, while none was either done

or threatened in this case. There had been no work

stoppage in the previous incident. And Mr. Buckholtz

completed the construction project with the pickets

still in place. The defense argued that such evidence, if

relevant at all, was prejudicial beyond its probative

value. The Court admitted it over defense counsel's ob-

jection.

The other incident which gives rise to an issue in

this petition occurred when defense counsel sought a

ruling in limine from the Trial Court with regard to

whether subsequent-arrest-interrogation would be

permitted if defendant Duhon presented character wit-

17

nesses. The subsequent event for which petitioner

Duhon had been arrested was a charge of conspiracy

to commit aggravated criminal damage to property

and a conspiracy to commit murder, arising out of a

strike and ensuing labor violence at a construction

site of a chemical] plant being constructed for Jupiter

Chemical Company in Southwest Louisiana.

Significantly, it was the statewide adverse publicity

arising out of the Jupiter incident which occasioned

the provisional change of venue to Monroe, Loui-

siana — the farthest point in Louisiana from the place

of the labor violence at which Federal Court is held —

with the stipulation that if the prejudicial publicity

was found to have saturated that area of Louisiana

then venue would be changed to another state. Follow-

ing the Jupiter incident, the supporters of a “Right-to-

Work” bill before the Louisiana Legislature spon-

sored a statewide campaign depicting on television

the destruction and violence at the Jupiter Chemical

plant site. Also tied to organized labor were unsub-

stantiated, and later refuted, claims that organized

labor had caused the murder of a prominent adver-

tising executive who conducted the “Right to Work“

campaign. Even though the jurors, on voir dire ex-

amination, had denied either hearing about the Jupiter

incident, the murder, or the “Right to Work” cam-

paign, or that they would be influenced thereby, there

was too great a danger to the defense if the prosecution

were allowed to bring this incident out before the jury.

The Trial Court rules that the prosecution would be

allowed to interrogate petitioner’s character wit-

nesses about their knowledge of his arrest in connec-

tion with the Jupiter incident, thus forcing petitioner

Duhon to forego the benefit of adducing character

evidence in his own defense. The denial of the benefit

18

of this type evidence, occasioned by the Trial Court’s

erroneous ruling in limine, effectively denied peti-

tioner Duhon an opportunity to defend himself with

relevant evidence which, in a case as close as this one.

might have been adequate to supply a reasonable

doubt about his guilt in this case.

REASONS FOR GRANTING THE WRIT

1. The ruling of the Trial Court, affirmed by the

Court of Appeals, which admitted evidence of an inci-

dent which occurred ten years previously to the act in

question in this case and which involved vandalous

but non-extortionate behavior of different labor of-

ficials and men than were involved in this case, on the

theory that such evidence was relevant to the alleged

victim's state of mind, presents an important question

of federal law which has not be. 1, but should be, decid-

ed by this Honorable Court.

Petitioners do not dispute the right of the Govern-

ment to present evidence of prior similar occurrences

in order to demonstrate the reasonableness of a vic-

tim’s state of mind in a Hobbs Act (18 U.S.C. §1951)

case. Such evidence has been allowed by each Circuit

which has considered the question, e.g.: United States

v. Glasser, 443 F.2d 994 (2 Cir.), cert. den., 404 U.S. 854

(1971); United States v. Stirone, 311 F.2d 277 (3 Cir.

1962), cert. den., 372 U.S. 935 (1963); United States v.

Hyde, 448 F.2d 815, 845-846 (5-Cir_ 1971); United States

v. Battaglia, 394 F.2d 304, 313 (7 Cir. 1968), remanded on

oth. grnds., 394 U.S. 310 (1969), appeal after remand,

432 F.2d 1115, 1119 (7 Cir. 1970); Callanan v. United

States, 223 F.2d 171, 174-176 (8 Cir.), cert. den., 350 U.S.

862 (1955). But such cases as these do not deal with the

19

issue herein presented, i.e., the relevance of such

evidence to demonstrate the victim’s state of mind

when such evidence is remote to the relevant time

frame, involved different people, and is dissimilar to

the events in question which allegedly produced the

victim’s alleged state of mind. |

The Government recognized the thrust of

petitioners’ argument to be the lack of similarity and

the remoteness of the alleged prior labo: experience.

The Government argued that similarity is not re-

quired (Appellee’s Brief, p. 22), and (ibid.):

* * * There are no cases that place a limit on a

victim’s past experiences contributing to his

fearful state of mind or requiring exactness

[or] similarity as there is no logical reason to

do so..

While the cases do not appear to require that the con-

duct be similar, the evidence approved in the

numerous cases under this rule of evidence has been

similar to the conduct at issue or at least part of acon-

tinuing transaction involving the same people. The

Glasser case involved a past incident of spraying acid

on plate glass windows which had been installed by

non-union glaziers, including one such incident in

which there was direct proof of the defendant’s in-

volvement, in a Hobbs Act prosecution for extortion to

require people who wanted such glass replaced to use

glaziers who hired union labor. The Battaglia case in-

volved actual threats of violence relative to a previous

contract by co-defendants involved in the alleged ex-

tortion of a similar nature to that charged in the said

case to show the alleged victim’s fear in the present

case was reasonable. The Hyde case involved an

industry-wide knowledge that payoffs had to be made

to State officials in order to obtain a stock issue in the

State of Alabama. Each of these cases involved recent

or on-going patterns or practices, involving the same

persons. The above three cases are representative of

the entire jurisprudence, until the decision in this

case.

The present case is the only reported decision which

could be found by this writer, and apparently by the

Government as well, which justifies the admission of

remote, dissimilar conduct by different persons to

prove the reasonableness of an alleged state of fear in

the alleged victim. The decision is not only unwar-

ranted but it is unreasonable.

The petitioners cited United States v. Broadway, 477

F.2d 991 (5 Cir. 1973), to the Court below for the

proposition that dissimilar conduct by different per-

sons long ago is irrelevant to a determination of the

state of mind of the alleged victim. The Court below

responded (Slip Opinion, p. 1309):

Evidence of conduct of persons other

than a defendant that is relevant to an alleged

extortion victim’s fearful state of mind is ad-

missible regardless of its degree of similarity

to the situation that gave rise to the alleged ex-

tortion.

We respectfully disagree, especially when the dis-

similar conduct was performed by not only different

21

persons but was done so long ago that there is no con-

ceivable nexus between it and the alleged victim's

present state of mind.

Therefore, petitioner respectfully urges this

Honorable Court to exercise its discretion in favor of

reviewing this case on certiorari and enunciating the

limitations, if any, which must be placed upon this

highly prejudicial brand of evidence.

2. The rulings of the Trial Court, affirmed by the

Court of Appeals, which foreclosed cross-

examination of the Government's key witness (who

the defendants were attempting to show was the real

recipient of the money derived from the alleged extor-

tionable activity) with regard to prior inconsistent

statements made by him to F.B.I. Agents on the ground

the said witness had not signed or otherwise adopted

these statements, and which foreclosed cross-

examination of that same witness with regard to a

. hearing problem, which was brought out for the first

time on redirect examination in order to attempt to

rehabilitate the witness with respect to prior inconsis-

tent statements made before the grand jury, squarely

conflicts with numerous decisions of this Honorable

Court, commencing with Alford v. United States, 282

U.S. 687 (1931) and continuing to the present date.

While the Court may have discretion to limit cross-

examination, that discretion does not exist until the

right of cross-examination has been fully accorded.

There was no right of cross-examination accorded at

all with respect to the Government’s key witness hear-

ing problem. That came out on redirect to show why

the witness’ prior statements had been contradictory,

i.e., because he could not hear the questions. But no op-

portunity was even accorded the petitioners to ask the

witness if he could hear the questions. Only the in-

ference was created by the witness’ answer on re-

direct. The Government has argued in the District

Court and in the Court of Appeals that petitioners

were enabled to bring out the prior contradictory

statements before the grand jury, and that the im-

peachment from the F.B.I. 302’s would have been

cumulative and non-contributory to the assessment of

the witness’ credibility. Especially in view of the

Court’s ruling with regard to cross-examination of the

witness regarding his hearing problem in the grand

jury, the alternate source of impeachment to the F.B.I.

302’s, the petitioners were prejudiced by the Court’s

ruling disallowing cross-examination of the witness

on the basis of his statements to F.B.I. Agents.

The Trial Court apparently confused the re-

quirements of 18 U.S.C. §3500 with the rights of the ac-

cused to cross-examine a witness on the basis of a

prior contradictory statement. The 302-statements

were made under the sanction of 18 U.S.C. §1001. That

would appear to bring that statement within the terms

of Rule 801(d)(1)(A), Federal Rules of Evidence, which

would permit admission of the statement itself. Of

course, the proper foundation would have been neces-

sary in order to have the F. B. I. 302’s admitted. But it

was the cross-examination which was predicate to

proving the statement was made which was curtailed.

The witness must have been asked if he made the state-

ment and told when and to whom. If he denied it, the ex-

istence of the statement could be proved by the

testimony of the FBI Agent who took it and his Report

of Interview (Form 302). If the witness admitted the

prior inconsistent statement was made, then the im-

peachment value of the prior inconsistency would

have been attained. But by denying even the oppor-

tunity to ask if the statement was made, the defen-

dant’s right of confrontation of the Government's key

witness was denied and defendants were prejudiced

thereby.

For having denied substantial cross-examination of

the Government's key witness, this Court should

grant its writ of certiorari and review and reverse the

judgment below.

3. The Trial Court's ruling, affirmed by the Court of

Appeals, relative to the prosecutor's rebuttal argu-

ment was highly prejudicial to the petitioners and

sanctioned a gross departure from the norms of fair

trial, as that term is used in a constitutiona) context,

which calls for the exercise of this Court’s super-

‘ visory jurisdiction.

In the Statement of the Case, ante, we have attempt-

ed to show that the conclusion that Mr. Gene

Buckholtz used the picketing by petitioners’ unions as

an opportunity to mulct the owners of the warehouse

he had contracted to construct of the $5,000.00 which he

said he gave to petitioners. The circumstantial show-

ing of this was substantial, if not conclusive. Several

days after West Brothers gave Buckholtz a check for

$5,000.00, which Buckholtz converted to fifty $100.00

bills, Buckholtz spent $3,500.00 in cash, mostly in

$100.00 bills according to Buckholtz’ own wife. The

story that these $100 bills were attained from the

change for checks written in excess of the amount of

purchases at the grocery store and from cashing

checks for rental receipts is incredible, if not outright

preposterous. And the fact that Buckholtz waited until

Brandt, the West Brothers representative, was in

Colorado to “deliver’’ the money, more than a month

after the alleged extortion, clearly shows that

Buckholtz wanted to avoid the risk of having Brandt

say he wanted to accompany Buckholtz to the scene of

the payoff. Extortioners do not wait for a month before

demanding payment. The money was proved to have

been given to Buckholtz. It was not given to

petitioners. The buck stopped with Buckholtz.

In closing, the prosecutor argued:

You know, we wonder why no one will come

forward as a witness. There is the reason

{referring to the accusation against

Buckholtz].* * He is a witness, a man who got

money taken from him and he is called a thief.

Oh, no, Ladies and Gentlemen, you can’t have

it both ways. Either Gene Buckholtz is an

honest man who came forward and told the

truth and fulfilled his duty as a citizen and was

a witness and these men are guilty as charged,

or he is the thief and the crook and the con man

they paint him to be.

Petitioners urge that the prosecutor’s argument had

the effect of stating to the jury that an acquittal would

undermine law enforcement efforts in the future

because it would discourage victims of extortion from

coming forward as witnesses. This was an appeal to

the jurors’ sense of civic responsibility not in this case

but with regard to all future cases. It was an appeal to

the sympathy of the jurors not for Buckholtz; but all

future witnesses. This argument went far beyond the

present case. Such a departure from the tenets of fair

trial in this nation should not be sanctional. This

Court should therefore exercise its supervisory

jurisdiction in this regard as well.

4. The opinion of the Court below squarely con-

flicts with an applicable and appropriate decision of

the United States Court of Appeals for the District of

Columbia Circuit, made in United States v. Lewis, 157

U.S.App.D.C. 43, 482 F.2d 632 (1973).

On the trial of this cause, petitioner sought an in

limine ruling from the Trial Court with regard to

whether the Government would be allowed to cross-

examine character witnesses about arrests made after

the date of the offense in this case. The Court ruled that

the Government would be so permitted. Petitioner,

rather than risk the prejudice which would accrue

from the admission of such evidence, forewent his

right to present evidence of his good character.

In United States v. Lewis, supra, at 482 F.2d 641-642,

the Court discussed the rule and the reasons for not

allowing evidence of community reputation subse-

quent to publication of the charge on trial. Various ex-

cerpts from the Lewis opinion are set forth as follows:

There is, however, one feature of the instant

case which has no counterpart in Michelson

Iv. United States, 335 U.S. 469 (1948)].

Appellant’s narcotic arrest took place two

weeks before the commencement of his sec-

ond trial, but ten months after occurrence of

the offense for which he was being tried. The

point in time at which any character trait for

peace and good order was relevant to the

issues was the date of the offenses on trial, and

appellant’s effort to establish it favorably

would have been limited to a showing of his

community reputation therefor at that time.

Since proof ofa reputation ata given time may

tend to indicate what the reputation at a later

time is, his character witnessee might have

been allowed to testify as to a reputation exis-

tent during a period prior to and not remote

from the offense date. On the other hand, since

the community's view of the accused’s char-

acter could well be affected by the gossip

which frequently follows on the heels of a

criminal charge, his reputation in the com-

munity after the charge became publicized

might not be a trustworthy index to his actual

character. For this reason, the courts have

generally held that a reputation subsequent to

publication of the charge on trial is not ad-

missible in evidence. (Footnotes omitted.)

The Court below said in the case sub judice (Slip

Opinion, p. 1310):

** * The Lewis Court recognized that cross-

examination on such subjects was basically

within the trial court's discretion. See, id., 157

U.S.App.D.C. 53, 482 F.2d at 642. This court has

27

recently indicated its approval of the general

rule espoused by Lewis. *** (Footnotes

omitted.)

The Court below did not allude to any exercise of dis-

cretion by the Trial Court, so as to distinguish the rul-

ing of the Trial Court in this case from an arbitrary,

capricious or whimsical — or mistaken — assertion of

power. The Lewis Court discussed the manner in

which judicial discretion might be fairly and properly

exercised (482 F.2d at 642):

* * *Some discretion in the matter is more in

keeping with the broad discretion which

judges have as to the admission of character

testimony, and which traditionally they have

exercised over the scope of cross-

examination, than is any inexorable rule on

the subject. A measure of discretion imparts to

the proceedings a desirable degree of flexibili-

ty to shape the judge’s ruling to the numerous

and subtle considerations” (67. Michelson v.

United States, supra, note 13, 335 U.S. at 480]

appearing. Not every situation calls for exclu-

sion of questions exploring knowledge of

events occurring after the time in issue. Not

every subsequent event is an unacceptable

topic, nor a topic so prejudicial as to out-

weigh its probative significance; some events

otherwise objectionable perhaps could be

made unobjectionable. A decision to permit

inquiry respecting subsequent events should,

of course, be reached cautiously, and only for

the best of reasons. But in the final analysis

the matter should be left to careful handling by

the trial judge, subject to appellate correction

only where mishandling is clear. (Footnotes

omitted, except where incorporated within

brackets in the above quoted text.)

The decision in this case was not made “only for the

best of reasons.” The Trial Court saw no difference

between prior and subsequent arrests for purposes of

character-witness cross-examination. There was no

exercise of discretion at all. Had there been, it is sure

that the evidence would have been excluded just on the

ground of prejudice beyond probative value. The sub-

sequent event at issue was massive labor violence in

the Lake Charles, Louisiana, area which was publiciz-

ed statewide during a right-to-work campaign seek-

ing citizen support for a pending legislative bill. Both

petitioners here had been arrested as conspirators,

simply because of their official positions in the labor

movement. The change of venue granted in this case

was required by that publicity. Had petitioners been

identified with this labor violence, it is certain they

would have been prejudiced before the jury.

The Lewis case contemplates a true exercise of dis-

cretion, with the exclusion of subsequent event cross-

examination as the usual procedure. The decision re-

fers to “Some discretion”; “A measure of discretion”’;

“shap[ing] the judge’s ruling to the ‘numerous and

subtle considerations”; and the Court pointed out that

“Not every situation calls for exclusion ; Not

every subsequent event is an unacceptable topic“: etc.

And the Court made reference to tailoring the evidence

actually admitted to serve the least harm to the

defense. The Court below treated the issue as one call-

ing for the exercise of ordinary discretion to exclude,

whereas the Lewis Court regarded the allowance of

subsequent event cross-examination to be one calling

for the extraordinary use of discretion to admit, this

class of evidence.

We respectfully submit that the Lewis case estab-

lishes the proper criteria for admitting or excluding

subsequent event cross-examination of character

witnesses. In view of the high incidence of arrests for

crimes subsequent to the offense for which defendants

are on trial, it should be recognized by this Court that

this issue presents a recurring matter of grave impor-

tance to the administration of justice in the Federal

Courts which calls for the exercise of this Court's dis-

cretion and supervisory jurisdiction.

The Court below held the error, if any, to be

harmless. We respectfully submit that it was not. This

was a close trial; otherwise the guilt of Gene

Buckholtz could not have been established so clearly

by the evidence in this case. Had Buckholtz been the

one on trial, we do not believe there is a Court in the

land which would hav held the evidence against him

to be insufficient on any essential element. Since char-

acter evidence may be adequate in such a close case to

cause the jury to have a reasonable doubt, we respect-

fully submit that the Fifth Circuit’s alternative

holding that the Trial Court’s ruling was harmless is

inaccurate and warrants reversal of the judgment

below.

30

CONCLUSION

For the foregoing reasons, this Honorable Court

should grant a writ of certiorari directing the Clerk of

the United States Court of Appeals for the Fifth Circuit

to certify and transmit the record in the proceedings

below to this Honorable Court and to abide the further

orders of this Court in the premises. Upon reviewing

this case, this Honorable Court should reverse the

judgment below and remand this case to the District

Court for a fair trial.

Respectfully submitted,

McPHERSON, WEBER &

ZAINEY

JAMES A. McPHERSON

Attorney for Defendants

419 Carondelet Street

New Orleans, Louisiana 70130

Telephone: (504) 581-1975

J. CLEM DREWETT

DREWETT & JACQUES

Attorney for Defendants

625 Kirby Street

Lake Charles, Louisiana 70601

Telephone: (318) 433-4674

31

CERTIFICATE OF SERVICE

I, James A. McPherson, attorney for Harlan Duhon

and Donald Ray Lovett, petitioners herein, and a

Member of the Bar of the Supreme Court of the United

States, hereby certify that on the day of February,

1978, I served copies of the foregoing Petition for a

Writ of Certiorari on the parties thereto, as follows:

1. On the United States of America, by mailing a

copy in a duly addressed envelope, with air mail

postage prepaid, certified, return receipt requested, to

the Solicitor General of the United States, Department

of Justice, Washington, D.C., and also by mailing a

copy in a duly addressed envelope, with air mail

postage prepaid, certified, return receipt requested, to

Mr. D. H. Perkins, First Assistant United States At-

torney, U.S. Attorney’s Office, Shreveport, Louisiana.

All parties required to be served have been served.

JAMES A. McPHERSON

Attorney at Law

la

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

versus

Harlan DUHON and

Donald Ray Lovett,

Defendants-Appellants.

No. 76-3998.

United States Court of Appeals,

Fifth Circuit.

Jan. 3, 1978.

Appeal from the United States District Court for the

Western District of Louisiana.

Before WISDOM, GEWIN and AINSWORTH, Circuit

Judges.

AINSWORTH, Circuit Judge:

Defendants Harlan Duhon and Donald Lovett appeal

from convictions for extortion in violation of the

Hobbs Act, 18 U.S.C. § 1951. The charge of extortion

arose out of a $5,000 payment allegedly made to the

defendants, two labor union officials, by a building

contractor who was experiencing labor troubles at his

construction site.

On appeal defendants present a number of assign-

ments of error. Both Duhon and Lovett urge that: 1) the

evidence presented at trial is insufficient to support a

conviction for extortion; 2) the admission of evidence

regarding previous labor troubles of the building con-

tractor was prejudicial error; 3) the court’s refusal to

admit the testimony of a defense witness was

erroneous as the witness's testimony would have re-

butted the Government’s impeachment of a defense

witness. Defendant Duhon asserts that: 4) the cross-

examination of a defense character witness as to a

criminal charge against Duhon subsequent to the

offense charged in the present case was improper and

prejudicial. Defendant Lovett avers that: 5) the trial

court erroneously prohibited the use in cross-

examination of the FBI summaries of statements of

two prosecution witnesses; 6) the denial of recross-

examination of prosecution witness Buckholtz about

his hearing problem was error; 7) the trial court’s

charge to the jury regarding the legality of the picket-

ing at the construction site was irrelevant and pre-

judicial; 8) the prosecutor's jury argument constituted

grounds for mistrial, and 9) the indictment charged an

extortion of Buckholtz but the evidence could at most

be construed as an extortion of West Brothers, the

future owners of the warehouse. Finding all nine con-

tentions without merit, we affirm.

Facts

As the circumstances of the alleged $5,000 payment

to Duhon and Lovett are of crucial importance in this

case, a detailed description of the facts is required. The

prosecution’s main witness was Eugene Buckholtz,

3a

president of Southwest Construction and Paving, Inc.

In 1974 his company began construction of a ware-

house for West Brothers stores in DeRidder, Loui-

siana. The project involved some nonunion workers,

including a nonunion electrical contractor. Soon after

work began on the construction site, pickets from the

Southwest Louisiana Building e d Construction

Trades Council appeared and some of the workers on

the site walked off.

Buckholtz stated at trial that at this point he did not

know why the pickets had been placed on the job site,

and that Jim Barr, president of the local union, did not

tell him the reason for the picketing. Buckholtz testi-

fied that he was especially worried about the picketing

because of the large amount of construction materials

scheduled to arrive at the site. In addition to this con-

cern, Buckholtz testified as to a previous experience

with labor trouble on a construction site in 1964, when

he suffered the destruction of valuable equipment.

Edward Brandt of West Brothers stated that delay in

construction was particularly worrisome to him

because carloads of merchandise were scheduled to be

delivered to the warehouse around the anticipated

completion date. Brandt and Buckholtz discussed

what to do to stop the picketing. Brandt asked Buck-

holtz if he thought $10,000 would suffice, and Buck-

holtz replied that $5,000 should be enough.

Barr, the union local leader, set up a meeting to dis-

cuss the picketing. On July 16, 1974, a meeting was

held between the local labor leaders, Lovett, Duhon,

Barr, and Carlock, and the representatives of manage-

ment, Buckholtz and Brandt. Herman Stewart, the city

4a

attorney, was also present. After the meeting proceed-

ed for several minutes it became apparent that group

discussion would be fruitless. Buckholtz’s inquiries

into why the pickets were on his site were answered by

Lovett with the statement that the site was “not right.“

Brandt testified that when he sought a more respon-

sive answer, Lovett replied to the effect that the picket-

ing might expand to include West Brothers’ retail

stores. Stewart testified that although he might have

received the impression that the stores could possibly

be picketed, he could not say that a direct statement

was made. Stewart remarked that the meeting was go-

ing nowhere. Lovett responded that Buckholtz knows

what it will take. Stewart then suggested that

Buckholtz and Lovett take a walk.

Buckholtz testified that Lovett’s tone changed

dramatically once they left the meeting. According to

Buckholtz, Lovett told him that the “whole thing could

be resolved real easy,” and put his arm around

Buckholtz, who then asked him if $5,000 would take

care of it. Lovett responded that everything should be

all right and that he wanted Buckholtz to sign a labor

contract with him. Buckholtz stated that he told Lovett

he did not want to sign the contract because of his non-

union maintenance workers at the paper mill. Lovett

said that the contract only concerned the workers at

the warehouse construction site. Some further discus-

sion of employee positions at the construction site

followed, and then Lovett and Buckholtz returned to

the meeting. They told the other representatives at the

meeting that their differences had been settled and the

pickets would be withdrawn. The pickets were remov-

ed in the afternoon and never re-appeared. Neither the

$5,000 payoff nor the labor contract was mentioned at

5a

the meeting, and Buckholtz did not inform Brandt that

he had signed a labor agreement with Lovett.

After the meeting Buckholtz told Brandt that he had

agreed to pay $5,000. Later that afternoon Buckholtz

received a check from West Brothers made out to his

company. Buckholtz cashed the check the next day,

receiving payment in fifty $100 bills. Buckholtz pur-

chased a hunting camp soon after cashing the West

Brothers check, paying for it with $3,500 in cash and

two checks. Buckholtz testified that the $3,500 in cash

had been accumulated over a few months by writing

checks in excess of the amount owed at the grocery

store and cashing rental checks from a bowling alley

he owned. Buckholtz’ wife testified that the $3,500 in

cash was mainly $100 bills.

According to Buckholtz, Duhon called him in late

July or early August regarding the electrical contrac-

tor at the warehouse construction site. Duhon claimed

that the contractor had not seen him and become

“right.” Buckholtz told Duhon to see Lovett. The rec-

ord indicates that there were four phone calls in-

volving Buckholtz and the Lake Charles Electrical

Workers Local. of which Duhon was president: on July

23, two on July 26, and one on August 19, 1974.

Buckholtz claimed that Lovett called him on August

19 and asked him to come to Lake Charles. Buckholtz

refused at first, claiming he was too busy. Buckholtz

then phoned Brandt and told him he had to deliver the

money. After speaking with Brandt, Buckholtz called

Lovett back and said he would go to Lake Charles that

afternoon.

6a

When Buckholtz arrived in Lake Charles he found

Lovett and Duhon together. The three men then went

for a ride in Duhon’s car. During the ride, Lovett asked

whether Buckholtz had brought it. Buckholtz removed

the money from his pocket and remarked that he did

not know how the payment was expected, and that he

had placed the money in five envelopes, expecting that

five different trades were going to be bought off. Lovett

replied to the effect that no such division was con-

templated, and that they would take care of the money.

Buckholtz said Duhon had mentioned the problem of

the electrical contractor and after the payment Duhon

declared that evervthing was fine, and that the elec-

trical contractor was “okay.” Buckholtz considered

the payment to have been made to both Lovett and

Duhon.

Buckholtz stated that Duhon’s car was having

transmission trouble on August 19, 1974. The day after

Buckholtz’s trip to Lake Charles, Duhon’s car was

taken to a garage for repairs. The mechanic who

repaired Duhon’s car, Albert Young, testified that the

vehicle had been running hot and only preventive

maintenance was performed on the transmission. The

Government sought to impeach Young’s testimony by

calling an FBI agent who stated that Young had

previously told him that the problem had concerned

the transmission’s failure to shift correctly.

A. K. Newlin, the electrical contractor, testified that

after the construction work had been proceeding for

some time after the August 19 payoff, Buckholtz phon-

ed him and said Duhon was complaining that Newlin

had not succeeded in getting “right” with him.

7a

1. Sufficiency of the Evidence

The jury obviously resolved the issue of credibility

in favor of Mr. Buckholtz. On review we must deter-

mine whether the circumstances make belief of Buck-

. holtz’s version of the $5,000 payment unreasonable,

and whether if Buckholtz’s testimony is completely

accepted a case of extortion has been proved beyond a

reasonable doubt. Of course, the evidence must be re-

viewed in the light most favorable to the Government.

See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct.

457, 86 L.Ed. 680 (1942); United States v. Martinez, 5

Cir., 1977, 555 F.2d 1248. We will first examine the al-

leged inconsistencies urged by the defendants as

rebutting the credibility of Buckholtz’s testimony.

Defendants’ contention that the failure of Lovett and

Duhon explicitly to request money at any point is

inconsistent with Buckholtz’s explanation of the

payoff. This contention is without merit because the

circumstances surrounding both the initial con-

versation between Lovett and Buckholtz and the later

automobile ride including Duhon were such that am-

biguous remarks can quite easily be understood as re-

quests for money. In any case, this question was one

for jury resolut.on, and we cannot conclude that its

verdict was unwarranted under the circumstances.

Defendants also point to Buckholtz’s failure to inform

anyone that he signed a labor agreement with Lovett

and his failure to come forward with the charge of ex-

tortion for nineteen months. These facts are best ex-

plained in terms of Buckholtz’s protection of his own

interests. Defendants have also suggested that

Lovett’s acceptance of only a $5,000 offer is un-

realistic, as a seasoned labor negotiator attempting to

8a

extort would certainly bargain for more money.

Defendants seek to buttress this view with the fact that

Lovett did not set a time and place for payment at the

time the $5,000 was offered by Buckholtz. This fact

proves nothing conclusive, however, because both

Buckholtz and Lovett must have known that if Buck-

holtz attempted to renege on his offer, Lovett could

simply reimpose a picket line. Another fact urged by

defendants as inconsistent with Buckholtz’s

testimony is the payment, predominantly in $100 bills,

of $3,500 for the purchase of a camp soon after Buck-

holtz cashed the $5,000 check from West Brothers and

received the sum in fifty $100 bills. The jury evidently

believed either Buckholtz’s explanation or that even if

Buckholtz had used $3,500 of the $5,000 in late July, the

$5,000 was nonetheless paid over to Lovett and Duhon

on August 19.

The question now is whether the evidence offered by

the Government is sufficient to prove extortion within

the meaning of the Hobbs Act. The statute, 18 U.S.C.

§1951, provides:

(a) Whoever in any way or degree obstructs,

delays, or affects commerce or the movement

of any article or commodity in commerce, by

robbery or extortion or attempts or conspires

so to do, .. shall be fined not more than $10,-

000 or imprisoned not more than twenty years,

or both.

(>) As used in this section —

(2) The term “extortion” means the ob-

taining 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.

Buckholtz’s testimony establishes that money had

been obtained from him by Lovett and Duhon with his

consent. However, the evidence regarding Buck-

holtz’s state of mind during the period before the offer

of $5,000 was made shows that he was motivated by

fear of economic loss caused by the picketing. In addi-

tion, his previous experience with labor unrest in 1964

was shown to have resulted in some destruction of

Buckholtz's property. The anticipation of economic

loss constitutes “fear” within the meaning of the

Hobbs Act. See, e.g., United States v. Quinn, 5 Cir. 1975,

514 F.2d 1250, 1267, cert. denied, 424 U.S. 955, 97 S.Ct.

2978, 47 L.Ed.2d 361 (1977); United States v. Jacobs, 5

Cir., 1971, 451 F.2d 530, 542, cert. denied, 405 U.S. 955, 92

S. Ct. 1170, 31 L.Ed.2d 231 (1972).

The crucial issue is whether defendants intended to

induce the $5,000 payment by exploiting Buckholtz’s

fear of economic loss. If not, then defendants merely

accepted a bribe, which does not constitute extortion

or violate the Hobbs Act. The distinction between ex-

tortion and bribery was discussed in United States v.

Hyde, 5 Cir., 1971, 448 F.2d 815, 833, cert. denied, 404

U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972): Itjhe dis-

tinction from bribery is therefore the initiative and

purpose on the part of the [defendant] and the fear and

lack of voluntariness on the part of the victim.” Thus,

the defendant must intend to exploit the fear of the vic-

10a

tim. The defendant need not have originally caused the

fear, nor need the cause of the fear itself be wrongful.

See id.

In the present case there is sufficient evidence to

demonstrate both the existence of a reasonable fear on

the part of the victims and the requisite intent to ex-

ploit that fear. Buckholtz and Brandt realized that the

picketing would cause them serious economic harm if

it continued. The fact that Buckholtz and Brandt had

agreed between themselves before the July 26 meet-

ing with the labor representatives to offer the union

leaders $5,000 to remove the pickets does not preclude

a finding that Lovett and Duhon intended to obtain

money from Buckholtz and Brandt by exploiting their

fear. The extortionist need not explicitly demand

property before it is offered. The jury could

reasonably find that Buckholtz and Brandt realized

that they were being set up by unscrupulous labor

leaders and were simply planning for an inevitable de-

mand for money.' The uncompromising stance taken

by Lovett at the July 16 meeting in DeRidder, includ-

ing the veiled suggestion that picketing could expand

to include West Brothers’ retail outlets, is further

evidence of defendants’ intent to intimidate Buck-

holtz and Brandt. The jury reasonably concluded that

the threat of continued and perhaps expanded picket-

ing absent a payoff was implicit in the actions of

Lovett and Duhon, and that the lack of an explicit

threat or request for money was not inconsistent with

1 See United States v. Hyde, 5 Cir., 1971, 448 F.2d 815, 834, cert. de-

nied, 404 U.S. 1058. 92 S.Ct. 736, 30 L.Ed.2d 745 (1972): “[t]he jury

could infer that these people knew of the genera! pattern of extor-

tion and sought out Hyde with the knowledge that they would have

to deal with him eventually ....”

lia

a finding that Lovett and Duhon fully intended to ex-

ploit the vulnerability of Buckholtz and Brandt to the

possibility of continued picketing.

This court has previously affirmed convictions for

extortion where the defendant claims that the

evidence only shows receipt of a bribe. See, e. g., Unit-

ed States v. Quinn, 5 Cir., 1975, 514 F.2d 1250, cert. de-

nied, 424 U.S. 955, 96 S.Ct. 1430, 47 L.Ed.2d 361 (1977);

United States v. Hyde, 5 Cir., 1971, 448 F.2d 815, cert. de-

nied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745; U. S. v.

Jacobs, 5 Cir., 1971, 451 F.2d 530, 405 U.S. 955, 92 S.Ct.

1170, 31 L.Ed.2d 231 (1972). In Quinn the court

emphasized that “it is not necessary that the govern-

ment prove that the fear was a consequence of a direct

threat,” 514 F.2d at 1266. The court in Hyde also noted

that explicit threats were not required, and that the in-

tent to extort could be inferred from the state of mind of

the victim: [t]he jury is permitted to find such in-

ducement by the use of fear from testimony as to the

state of mind of the victim. . . .’ (quoting United States

v. Tolub, 2 Cir., 1962, 309 F.2d 286, 289). The victim’s

fearful state of mind is a crucial element in proving

extortion.” 448 F.2d at 845. The avoidance of explicit

demands for personal payoffs and threats of adverse

consequences if the payment is not made cannot in

themselves save a defendant from a jury deter-

mination that he intended to extort. In proving the

crime of extortion, where intent often must be in-

ferred from ambiguous statements and situations, the

jury's verdict must be accorded substantial weight.

Defendant Duhon contends that even if a case of ex-

tortion has been proved against Lovett, the evidence is

*

12a

insufficient to identify him with Lovett's extortion

scheme. Duhon was present at the July 16 meeting,

where he voiced his dissatisfaction with Buckholtz’s

nonunion electrical contractor. Buckholtz testified

that Duhon called him regarding the electrical con-

tractor in late July or early August and complained

that the subcontractor had not come by to see him and

become right. Buckholtz referred Duhon to Lovett.

In addition, it was shown that three phone calls to

Buckholtz had been made from Duhon’s union local of-

fice, including one on August 19, the date of the payoff.

Duhon remembered phoning Buckholtz on August 19,

but could not recall talking to him. Duhon explained

that the August 19 call was made at Lovett's request.

Even more telling evidence of Duhon’s guilt was his

assurance to Buckholtz after payment of the $5,000 to

Lovett that everything was fine with the nonunion

electrical contractor. The only evidence that might

possibly suggest that Duhon was not a party to

Lovett’s extortion is the testimony of the electrical

contractor, A. K. Newlin, a government witness, in-

dicating that months after the August 19 payment

Duhon once again complained that the electrical con-

tractor had not yet become “right” with him. But this

testimony is inconclusive, as Duhon could have mis-

led Buckholtz on August 19, or changed his mind since

that time. Taken as a whole there was sufficient

evidence to support the jury’s conclusion that Duhon

was involved with Lovett in the extortion of

Buckholtz.

2. Evidence of Previous Labor Conflict

Evidence of Buckholtz's experiences with labor un-

rest on a construction site in 1964 involving some

13a

destruction of equipment was admitted at trial. Defen-

dants contend that the admission of this evidence was

improper, inflammatory and prejudicial. The

evidence was offered for the purpose of buttressing the

prosecution’s claim that Buckholtz was in roasonable

fear of economic losses as a result of the picksting, and

the trial court instructed the jury that the evidence

was to be considered solely for its value in illustrating

the fearful state of mind of Buckholtz. Defendants in-

sist that admission of evidence of vandalism in an or-

ganizational struggle that did not involve extortion

ran afoul of this court’s decision in United States v.

Broadway, 5 Cir., 1973, 477 F.2d 991.

In Broadway a panel of this court considered the ad-

mission of other wrongful conduct of a defendant. The

evidence was admitted for the purpose of showing the

defendant’s intent in the case before the court. Because

the other wrongful conduct did not “include the essen-

tial physical elements of the offense charged,” id. at

995, it was not similar“ conduct, and therefore inad-

missible. Broadway's holding was interpreted in Unit-

ed States v. Bryant, 5 Cir., 490 F.2d 1372, cert. denied,

419 U.S. 832, 95 S.Ct. 629, 42 L.Ed.2d 58 (1974), where the

similarity requirement was explained as a matter of

relevancy and of degree. The Bryant court quoted with

approval from United States v. Kasouris, 5 Cir., 1973.

474 F. ad 689, 692 that ‘[tJhere is no necessity for syn-

onymity but there must be substantial relevancy for

purposes other than to show the probability that the

person committed the offense being tried because he is

a man of criminal character.’ Id. at 1377.

Considering this explanation for the similarity re-

quirement, it is apparent that the defendants’ claim is

14a

without merit. The prior acts of vandalism against

Buckholtz were not introduced to show the defendants’

criminal character. The acts of vandalism were not

committed by the defendants and were not admitted to

demonstrate their intent. We cannot say that the

evidence had the effect of impugning the character and

intentions of the two defendants. The relevance of the

evidence is clear, as this court has recognized the

value of evidence of the state of mind of the victims of

extortion. See, e. g., United States v. Hyde, 5 Cir., 1971,

448 F.2d 815, 845, cert. denied, 404 U.S. 1058, 92 S.Ct. 736,

30 L.Ed.2d 745 (1972). Evidence of conduct of persons

other than adefendant that is relevant to an alleged ex-

tortion victim’s fearful state of mind is admissible

regardless of its degree of similarity to the situation

that gave rise to the alleged extortion.

3. Refusal to Allow Testimony Regarding the Condi-

tion of Duhon’s Automobile

Buckholtz’s testimony that Duhon’s car had

transmission trouble on August 19 was admitted to

show that Buckholtz had been a passenger in Duhon's

car. The Government called Albert Young, the

mechanic who repaired Duhon's car on August 20,

1974, apparently to confirm Buckholtz’s testimony

regarding Duhon’s transmission. Young testified that

he had not noticed any problems with Duhon's

transmission and that the replacement of the trans-

mission filter and oil was merely preventive mainte-

nance. The Government impeached Young's

testimony by calling an FBI agent who stated that

Young had told him that on August 20, 1974, Duhon's

car would not shift correctly.

15a

Defendants then offered the testimony of C. A.

Nicholson, who purportedly examined Duhon's

transmission nine months later when Duhon sought to

sell the car. The claim is that Nicholson would have

testified that a transmission problem was just emerg-

ing in May 1975. This testimony was offered to con-

tradict the prosecution’s evidence indicating trans-

mission troubles in August 1974. The trial court sus-

tained the Government’s objection to Nicholson’s

testimony because it viewed the evidence as more mis-

leading than helpful, noting that Duhon’s car had been

repaired twice since August 19, and that too much time

had elapsed for the condition in May 1975 to be rele-

vant to a determination of the condition in August

1974. The trial court has wide discretion in deter-

mining the relevancy of evidence, see United States v.

Linetsky, 5 Cir., 1976, 533 F.2d 192, 204; United States v.

Allison, 5 Cir., 1973, 474 F.2d 286, 288-89, cert. denied,

419 U.S. 851, 95 S.Ct. 91, 42 L.Ed.2d 82 (1974). We do not

find an abuse of discretion in this case.

4. Cross-Examination of a Defense Character

Witness as to Other Charges Brought Against

Defendant After the Events in the Present Case

Defendant Duhon contends that the trial court erred

in ruling in favor of the propriety of cross-

examination of his character witnesses regarding

Duhon’s arrest and indictment on an independent

charge subsequent to the events in the present case.

Apparently as a result of this in chambers ruling,

Duhon failed to call the character witnesses.

Duhon relies on United States v. Lewis, 1973, 157

U.S.App.D.C. 43, 482 F.2d 632, for the proposition that

16a

cross-examination concerning subsequent arrests

and indictments of character witnesses who were to

testify as to the peaceful and law-abiding character of

the accused is, as a general rule, impermissible. The

Lewis court recognized that cross-examination on

such subjects was basically within the trial court’s

discretion. See id., 157 U.S. App. D. C. 53, 482 F. ad at 642.

This court has recently indicated its approval of the

general rule espoused by Lewis.“ Regardless of the

proper rule for the admissibility of this evidence, the

proof of Duhon’s guilt was so convincing that any

error must have been harmless. See Chapman v. Cali-

fornia, 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-28, 17 L. Ed. 2d

705 (1942); United States v. Lewis, 1973, 157

U.S.App.D.C. 43, 482 F.2d 632, 646-47.

5. Admissibility of Unsigned, Unadopted Statements

of Prosecution Witnesses for the Purpose of

Impeaching Their Testimony

Defendant Lovett.complains of prejudice caused by

the trial court’s refusal to allow cross-examination of

Buckholtz on the basis of summaries of the statements

of prosecution witnesses Buckholtz and Brandt to the

FBI. Lovett insists that these unsigned and unadopted

summaries compiled by the FBI revealed prior incon-

sistent statements of the witnesses. The asserted

inconsistency involved the date (August 19 or 20) of

Buckholtz’s trip to Lake Charles to deliver the payoff

money. Lovett later examined the FBI agent and cross-

2 The Supreme Court in Michelson v. United States, 335 U.S. 469,

480, 69 S.Ct. 213, 220, 69 S.Ct. 213, 93 L.Ed. 168 (1948), remarked on

the discretion vested in the trial court in controlling the cross-

examination of witnesses.

_3 See United States v. Candelaria-Gonzaiez, 5 Cir., 1977, 547 F. ad

291, 294 n. 5.

17a

examined Buckholtz on the inconsistency in dates.

Thus, the issue of the inconsistent dates was fully air-

ed before the jury. It is inconceivable that any pre-

judice could have resulted from the trial court's in-

sistence on not using these unadopted statements as a

basis for cross-examination.

6. Denial of Recross Examination of Buckholtz

Regarding His Hearing Problem

On redirect examination of Buckholtz, the

prosecutor asked him if he sometimes had difficulty

hearing questions, and Buckholtz answered affir-

matively. No further information regarding

Buckholtz's hearing problem was presented by the

prosecution. On recross-examination Lovett sought

to question Buckholtz about this issue, but was

prevented by the trial court on the ground that it was

not a matter touched on in the original cross-

examination. Defendant should not be precluded from

- recross-examining a witness regarding a matter not

broached until redirect examination. In this case,

however, the error was harmless beyond a reasonable

doubt.

7. Jury Instruction Regarding the Legality of the

Picketing at the Construction Site

Lovett advances the argument that the trial court’s

instruction to the jury on the legality of infor-

mational picketing and the illegality of organiza-

tional picketing under certain circumstances was

prejudicial error. The asserted bases for prejudice are:

1) that it improperly impugned the credibility of

defendants by informing the jury that defendants’

18a

knowledge of the legality of the picketing was a fact

issue for the jury, and 2) the possibility that the picket-

ing was illegal could impermissibly be taken by the

jury as evidence of coercive intent on the part of defen-

dants. Neither of these assertions is correct. Defen-

dants’ knowledge of the legal status of the picketing

was relevant to explaining their conduct and state of

mind as to the entire labor relations situation at the

construction site. The court’s instruction that the jury

was to decide whether union representatives knew the

legal status of the picketing was no more than an ad-

monition that the judge was not usurping the jury’s

role of determining the defendants’ state of mind, and

should not be taken as indirectly impeaching the

defendants. The court's instruction was therefore not

erroneous.

8. Jury Argument

Lovett claims that the prosecutor in effect stated

that a verdict of not guilty would undermine law en-

ement efforts in the future because it would dis-

courage victims of extortion from coming forward as

witnesses, and that this constituted prejudice. Ex-

amination of the prosecutor’s remarks reveals that the

defendant's claim is unwarranted.‘ The prosecutor's

4 The prosecutor's conciuding remarks were:

You know, we wonder, we wonder why no one will come

forward as a witness. There is the reason. You think he

won't pay a price. Wait until his next construction in

DeRidder. You think he hasn’ id a price? He is a

witness, a man who got money n from him and he is

called a thief. Oh, no, Ladies and Gentlemen, you can't

have it both ways. Either Gene Buckholtz is an honest man

who came forward and told the truth and fulfilled his duty

as a citizen and was a witness and these men are guilty as

charged, or he is the thief and the crook and the con man

they paint him to be. And I submit to you that would be the

height, that would be the ruination of an innocent life.

19a

remarks were relatively mild and not prejudicial.5 1

merely noted the cost to Buckholtz's reputation in

order to emphasize the credibility of the crucial

government witness.

9. Variance.of Evidence from the Indictment

The indictment charged defendants with taking

money from Buckholtz by extortion. Lovett argues

that the evidence at most demonstrated that the $5,000

was extorted from West Brothers rather than Buck-

holtz. This contention is without merit, as Buckholtz

was the person who was negotiating with Lovett when

the extortion demand was made, and the person who

delivered the $5,000 to Lovett and Duhon. There has

been no suggestion that Lovett and Duhon knew that

West Brothers had given Buckholtz a check to cover

the $5,000 payment. Therefore, the evidence proved an

extortion of Buckholtz, as charged in the indictment.

AFFIRMED.

5 See United States v. Millet, 5 Cir., 1977, 559 F.2d 253, 258 (finding

prosecutor's closing remarks to have had only an “insubstantial

and insignificant impact“).

5

*

20a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-3998

D. C. Docket No. CR-76-709

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARLAN DUHON and

DONALD RAY LOVETT,

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Louisiana

Before WISDOM, GEWIN and AINSWORTH, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Western District of Louisiana, and was argued by

counsel;

2ia

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed.

January 3, 1978

ISSUED AS MANDATE:

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-3998

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARLAN DUHON and DONALD RAY LOVETT,

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Louisiana

ON PETITION FOR REHEARING

(January 30, 1978)

Before WISDOM, GEWIN and AINSWORTH, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

/s/ ROBERT A. AINSWORTH, JR.

United States Circuit Judge

[Filed: JAN. 30, 1978]

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-3998

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HARLAN DUHON and

DONALD RAY LOVETT,

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Louisiana

ORDER:

The motion of APPELLANTS for stay of the

issuance of the mandate pending petition for writ of

certiorari is GRANTED to and including March 1,

1978, the stay to continue in force until the fina] dis-

position of the case by the Supreme Court, provided

that within the period above mentioned there shall be

filed with the Clerk of this Court the certificate of the

Clerk of the Supreme Court that the certiorari petition

has been filed. The Clerk shall issue the mandate upon

the filing of a copy of an order of the Supreme Court

denying the writ, or upon the expiration of the stay

granted herein, unless the above mentioned certificate

shall be filed with the Clerk of this Court within that

time.

/s/ ROBERT A. AINSWORTH, JR.

UNITED STATES CIRCUIT

JUDGE

Filed: FEB. 6, 1978]